Government’s responsibility under tort is regulated by the principles of public law derived from the British Common Law and the constitutional provisions.
Usually we assume that the person himself gets punished if he commits any wrong. But under the Law of Torts, there is a concept titled Vicarious Liability. Under Vicarious Liability, a person is held liable for the acts of another. The constituents of Vicarious Liability are as follows –
There should be some relationship between the person who committed a wrong and the other person.
Both the persons should be involved in the joint activity.
The wrongful act must be related to the relationship in a certain way.
The wrong should be done within the course of employment.
Vicarious Liability is related to the Legal maxim “Qui facit per alium facit per se” which means that “he who acts through another does the act himself.”
Principal and Agent
The basic conditions to drag the principal to a violation
There must be some authority assigned by principal to his agent which must be an apparent authority.
Authority may either be expressed or implied.
Agent must act within the course of employment
Master and Servant
To make the master liable there are two constituents to fulfill –
The act should be committed by the servant
The servant should have committed the act in the course of employment
It relies upon the legal maxim Respondent Superior which means that the superior should be held responsible for the acts done by his subordinate.
What if the Government’s employees have done any wrongful act resulting in damage to others?
The answer for this question is the Vicarious Liability of State. Vicarious Liability of State got evolved by the East India Company in 1858. But the article 300 came into effect from 1950.
In India, while there is no clear law dealing with the vicarious liability of the State, Article 300 of the Indian Constitution specifies that the union of India or the Government of State can sue and be sued like any ordinary person. Vicarious Liability of state is also known as the tortious liability of the Government. State’s liability for the tortious actions of its employees is called as tortious liability of the State. State is liable for the acts of negligence, wrongful execution and omission or commission either voluntarily or involuntarily.
In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court classified the functions of secretary of state into two –
Sovereign Functions: These are the functions of the state for which the state is not liable under any provision for the wrongful acts of its employees. For example, functions like defence activities, preserving armed forces, maintaining peace and war, diplomacy are some of the sovereign functions for which the state is not liable.
Non Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.
Justification for the liability
There are many reasons to say that the vicarious liability of state is justified –
The state is the one which is financially better.
Government motivates its employee to take reasonable care in order to avoid accidents which may cause some danger to the third person. This motivation is because the Government is liable to pay any compensation for the acts of the employee.
State gets some profits by the acts of the employee. So, it should hold up losses incurred by the employee’s acts.
All the acts done by the employee in the course of employment are done under the State’s order. So, ultimately the acts are the State’s own acts.
As the State has the power to appoint and dismiss its employees, it is the duty of the State to check the work done by its employees.
Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
This case is a pre-constitution case which prescribed the difference between sovereign and non- sovereign functions of the state.
The simple details in this case are that the company’s servant was on his way to Calcutta in a carriage pulled by a couple of horses. An accident took place when the wagon was travelling through the Government’s dockyard. Some of the workers of the Government Dockyard were carrying heavy iron rods to repair a steamer. However these workers dropped the iron rods, the noise of which affected one of the horses of the Plaintiff.
The company filed a suit against the Secretary of State for India to get relief for the damages. The Supreme Court of Calcutta held that the Secretary of State is liable for the damages. This case is the first case which brought upon the difference between sovereign and Non- sovereign functions of the state. As the maintenance of Dockyard is a non- sovereign function, Government was held liable.
State of Rajastan v. Vidyawati
Facts of the case are that a person named Lokumal was employed by the State of Rajasthan as a temporary driver for a Government car. After the completion of the repairs for car, during his return from the workshop, he knocked down a citizen named Jagdishlal (Plaintiff). Jagdishlal was severely injured and he died subsequently.
The plaintiff’s wife (widow) named Vidyawati and her minor daughter, through her mother as next friend, sued Lokumal and the State of Rajasthan for the relief.
Supreme Court held that the State was liable to pay the damages incurred as the act of driver was not a sovereign function.
Kasturilal Ralia Ram v. State of UP
Facts of this case are that the Plaintiff was arrested by the UP police officers on suspicion of having stolen property. On further investigation a huge quantity of gold was found and the same was seized by the police officials. Finally, he was released, but the gold was not returned to him as the Head Constable in charge of the malkhana absconded with the gold. The Plaintiff then sued the State of UP to return his gold or to pay damages for the same.
Supreme Court said that, it is the negligence of the police officers in dealing with the Plaintiff’s property and is violative of the UP Police Regulations.
But the court finally contended that the State is not liable to pay because the police officers acted negligently while they are executing their duty in arresting a person. These powers like arresting a person and seizing property are sovereign powers. The contention of the Supreme Court was based on the statutory power and the act done in exercise of the sovereign function.
It can be noted that the theory of constitutional tort is a revolutionary jurisprudence established by the courts given the reality that, in the past, the criteria encountered various critiques. A scientific criterion for future cases must evolve at the Apex Court. The U.S. “voting right model” can be introduced to assess the costs of proceedings under Constitutional Tort to prohibit the individual from violating their rights by statute.