Discuss the tortious liability of the State with the help of important judicial pronouncements.

Question: Discuss the tortious liability of the State with the help of important judicial pronouncements. [BJS 2017]

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Answer

The doctrine of Sovereign Immunity holds that the state or the sovereign can commit no legal wrong and is immune from civil suits and criminal prosecution. The old and archaic concept of sovereign immunity that “the king can do no wrong” whereby the state claims immunity for its tortious acts and denies compensation to the aggrieved party is now regulated by constitutional provisions in India and the court has given several judicial pronouncements on the same.

Article 300 of the Constitution provides for the sovereign immunity of the state. The first part of the article relates to the way in which suits and proceedings by or against the Government may be instituted. It enacts that a State may sue and be sued by the name of the Union of India and a State may sue and be sued by the name of the State.

The Second part provides, inter alia, that the Union of India or a State may sue or be sued in relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted.

The Third part provides that the Parliament or the legislatures of State are competent to make appropriate provisions in regard to the topic covered by Article 300(1).

The first judgment with respect to this subject was of State of Rajasthan v. Vidyawati (AIR 1962 SC 933). In the present case, the driver of a jeep which was owned and maintained by the state of Rajasthan was driven negligently while driving to the residence of the Collector and fatally injured a pedestrian. Rejecting the State’s contention of sovereign immunity, the Court said that it was not a sovereign function to drive a jeep and the state must incur liability for its actions. The Court also added that in present times, the State has more pressing functions like the welfare of its citizens and old feudalistic notions of justice cannot be sustained.

Another important landmark judgment is of Nilabati Behera v. State of Orissa, 1993 AIR 1960 in which the Supreme Court adjudged upon the overlap of Sovereign Immunity of state and violation of fundamental rights. In this case, the petitioner’s son was taken into police custody for investigation in the offense of theft in the village. The next morning, he was found dead on the railway tracks with his hands handcuffed. The Court awarded compensation to the Petitioner for the death of her son in police custody.

The Court also held that a claim in public law for compensation for contravention of human rights and violation of fundamental freedoms based on a Constitutional remedy that was meant to enforce fundamental rights was distinct from, and in addition to the remedy in private law for damages because of a tort. The Court thus held that the principle of sovereign immunity does not apply to the public law remedies under Article 32 and Article 226 for the enforcement of fundamental rights.

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