The Vexed Question Of Governmental Liability In Tort: Indian Perspective

Authors

  • S. Anand

Abstract

Could the Government, whether of the Union or that of any State, in India be sued? The answer to this question is a plain and simple yes as the Indian Constitution under Article 300 so declares. Could these entities be sued for enforcing the liability arising in tort? The answer to this question, in the absence of legislation encompassing the field, by virtue of Article 300, depends on the suability of the East India Company prior to coming into force of the Government of India Act, 1858. This has resulted in the incorporation, in the Indian legal system, of the archaic principle of sovereign immunity, which has its roots in the old feudalistic maxim “the King can do no wrong”. The said doctrine has, ironically, been shown the door in the U.K., the country of origin of the doctrine, and the U.S.A., through codification in the form of the Crown Proceedings Act, 1947 and the Federal Tort Claims Act, 1947, respectively. The Supreme Court of India in Kasturilal’s case has held that governmental liability in tort arises only in respect of performance of non-sovereign functions by its officials. While arriving at the said conclusion, the Supreme Court has primarily relied upon Justice Peacock’s judgment in the P&O Company case. Later on, a discordant note has been struck by a bench of two Judges in Nagendra Rao’s Case as an observation has been made to the effect that the emergence of the concept of welfare State has led to the disappearance of the classification of the powers as sovereign and non-sovereign and hence, the State cannot claim any immunity except in respect of exercise of primary or inalienable powers. It is, however, noteworthy that the clarion call made in Kasturilal’s case as to the need for a law regulating state liability in private law so as to ameliorate the prevailing uncertainty, has been reiterated. The tilt towards the said line of reasoning is observable in the subsequent decisions of the Supreme Court, even though the composition of the benches is smaller as compared to Kasturilal’s case. In cases involving Constitutional torts, the Supreme Court has altogether refused to pay any credence to the doctrine of sovereign immunity. This paper is a humble attempt to bring to light the incongruity encompassing the determination of governmental liability in tort in India in the aftermath of Nagendra Rao’s case.

Published

2020-12-01

Issue

Section

Articles