State of Rajasthan v. Vidhyawati

A Government jeep was being driven back from a repair shop in Udaipur in February 1952. The driver knocked down a pedestrian, who died three days later. The Supreme Court held that the State of Rajasthan answered for its driver like any other employer.

Quick Revision

Parties

State of Rajasthan — second defendant in the suit, respondent in the High Court and appellant in the Supreme Court. It was the only party that contested the suit.

Mst. Vidhyawati — plaintiff and respondent No. 1. She was the widow of Jagdishlal, the man who was knocked down.

Minor daughter of Jagdishlal — plaintiff and respondent No. 2. She was aged three and sued through her mother as next friend (a person who sues for a minor).

Lokumal — first defendant. He was a temporary motor driver on probation with the State. He remained ex parte (the case went on without him) and is not a party to the appeal.

Jagdishlal — the person knocked down and killed. He is not a party.

Procedural History

1. The plaintiffs sued Lokumal and the State of Rajasthan for damages of Rs. 25,000 from both.
2. Lokumal remained ex parte. Only the State contested the suit, on a number of issues.
3. The Trial Court held after an elaborate discussion of the evidence that Lokumal was rash and negligent. It decreed the suit against him ex parte.
4. The Trial Court dismissed the suit against the State without costs.
5. The plaintiffs appealed. The Rajasthan High Court (Wanchoo C.J. and D.S. Dave J.) allowed the appeal in D.B. Civil First Appeal No. 36 of 1954. Its judgment and decree are dated 22 March 1957.
6. The High Court decreed the suit against the State as well. It allowed compensation of Rs. 15,000 and costs in both courts.
7. The State applied for a certificate that the case met Article 133(1)(c) of the Constitution and obtained it. The High Court rightly observed that the case raised an important point of law of general public importance.
8. The State appealed to the Supreme Court as Civil Appeal No. 263 of 1958. Judgment was delivered on 2 February 1962.

Facts

1. Lokumal was a temporary employee of the State of Rajasthan, a motor driver on probation.
2. In February 1952 he was employed as driver of a Government jeep car, registered No. RUM 49, under the Collector of Udaipur.
3. The jeep had been sent to a workshop for repairs. After the repairs, Lokumal was driving it back along a public road.
4. The headnote adds that the jeep was being taken from the repair shop to the Collector's residence.
5. On the evening of 11 February 1952, Lokumal knocked down Jagdishlal in Udaipur city. Jagdishlal was walking on the footpath beside the public road.
6. Jagdishlal suffered multiple injuries, including fractures of the skull and backbone. He was taken to hospital and died there three days later.
7. His widow and a minor daughter aged three sued for damages. The daughter sued through her mother as next friend.
8. They claimed Rs. 25,000 from both defendants, Lokumal and the State of Rajasthan.
9. Both courts below agreed that Lokumal drove rashly and negligently, and that this caused the accident and Jagdishlal's death.
10. The State contested the suit chiefly on the ground that it was not liable for the tortious act of its employee.
11. The Trial Court took the view that the car was maintained for the Collector's use in his official duties. It held that this alone took the case outside vicarious liability, even though the car was not being used for any purpose of the State at the time.
12. The Trial Court concluded that the constitution and control of the Collector's office at Udaipur is an instance of exercise of sovereign powers.
13. On appeal, the High Court disagreed on the legal issue. It said the State was in no better position when it supplied cars and kept drivers for its civil service. It added that it was not considering drivers employed for military or public service vehicles.

Issues Raised

1. Under Article 300 of the Constitution, is the State of Rajasthan liable for its servant's tort? The State said the corresponding Indian State would not have been liable if the case had arisen before the Constitution.
2. Was the jeep car, which was driven rashly and negligently, being maintained in exercise of sovereign powers? The State said it was not part of any commercial activity.
3. What is the extent of the vicarious liability of Government for the tortious acts of its employees acting in the course of their employment?

Arguments Contended

For the appellant (State of Rajasthan)

• Counsel, G.C. Kasliwal, Advocate-General of Rajasthan, argued that under Article 300 the State was not liable. The corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force.
• The Advocate-General argued that the second part of Article 300 relates to the extent of a State's liability to be sued. The liability here must therefore be decided in terms of that Article.
• The State argued that the plaintiffs must prove that the State of Udaipur, the corresponding State, would have been liable in similar circumstances before the Constitution.
• The State argued that the jeep was being maintained in exercise of sovereign powers, not as part of any commercial activity of the State.
• Before the Trial Court, the State's contention was that the car was kept for the Collector's use in his official duties. It said this took the case outside the cases of an employer's vicarious liability.
• The State also argued that it cannot be liable when its servants are engaged on an activity connected with the affairs of the State. The Court treated this as a second branch of the immunity argument.

For the respondents (Mst. Vidhyawati and her daughter)

• Counsel, S.N. Andley, argued that Chapter III of Part XII of the Constitution covers property, contracts, rights, liabilities, obligations and suits. It contains Articles 294 and 295, which deal with rights and liabilities.
• The respondents argued that Article 300 only decides in whose name suits and proceedings are brought by or against a State. It does not define the extent of a State's liability.
• They therefore contended that Article 300 was irrelevant for deciding the State's vicarious liability and had nothing definitive on it.
• The judgment records no argument by the respondents on the sovereign-power point beyond this.

Court's Reasoning

Sinha, C.J. (judgment of the Court)

1. Noted: the appeal raised a question of considerable importance. The question was the extent of vicarious liability (liability of an employer for the wrong of an employee). It concerned Government and its employees acting in the course of employment.
2. Noted: both courts below had found that Lokumal was rash and negligent. The Court therefore did not need to examine the other questions raised in the suit, except the one pressed in the appeal.
3. Noted: counsel for the State raised two questions. The first was under Article 300. The second was that the jeep was maintained in exercise of sovereign powers. The Court called the first the more serious of the two.
4. Noted: the Court disposed of the second question first. It asked whether driving the jeep back from the repair shop to the Collector's place had anything to do with the exercise of sovereign powers.
5. Held: on the courts' findings, the tort was committed in circumstances wholly dissociated from the exercise of sovereign powers. The injury did not happen while the jeep was used in connection with such powers.
6. Noted: the Trial Court had accepted the State's contention. It reasoned that the constitution and control of the Collector's office at Udaipur is an instance of exercise of sovereign powers.
7. Held: the High Court took the correct view of the legal position in the circumstances of the occurrence. The Court agreed with the High Court's decision that the State is in no better position when it supplies cars and drivers for its civil service.
8. Noted: the Court turned to the true construction of Article 300(1). It set out the Article in full. The Article says the Government of a State may sue or be sued by the name of the State. It adds that the State may sue or be sued in like cases as the corresponding Provinces or Indian States. This is subject to any law of Parliament or the State Legislature.
9. Noted: the Court split the Article into three parts. The first part gives the form and cause-title of a suit. The second part allows a State to sue or be sued in like cases as the corresponding Province or Indian State. The third part makes the second subject to laws of the State's Legislature.
10. Noted: the Advocate-General said the second part deals with the extent of liability. The respondents said Article 300 deals only with the name in which suits are brought. They relied on Articles 294 and 295.
11. Held: it is not correct to say Article 300 is wholly out of the way in deciding the State's liability.
12. Held: Articles 294 and 295 deal with property, assets, liabilities and obligations of the former Governors' Provinces and Indian States in Part B of the First Schedule. They are primarily concerned with the devolution (passing on) of those rights and liabilities. They provide for succession of one Government in place of another. They do not define the rights and liabilities.
13. Held: the first part of Article 300 deals only with the names of parties. The second part defines the extent of liability by the words in the like cases. It refers back to the legal position before the Constitution.
14. Noted: that legal position appears in section 176(1) of the Government of India Act, 1935. It says the Federation may sue or be sued by the name of the Federation of India, and a Provincial Government by the name of the Province. They may do so in relation to their affairs in the like cases as the Secretary of State in Council. Laws made by the Federal or Provincial Legislatures can alter this.
15. Noted: Article 300(1) and section 176(1) are mutatis mutandis (with necessary changes) substantially the same. Section 176(1) refers back to the position under section 32 of the Government of India Act, 1915.
16. Noted: section 32(1) of the 1915 Act says the Secretary of State in Council may sue and be sued by that name as a body corporate. Section 32(2) gives every person the same remedies against the Secretary of State in Council as against the East India Company. This applies as if the 1858 and 1915 Acts had not been passed.
17. Noted: part 1 of Article 300 matches section 32(1). Part 2 roughly matches section 32(2). Part 3 of the Article has no place in section 32. Section 32(2) speaks of remedies and sends the reader back to the Act of 1858 (21 & 22 Victoria Ch. CVI), an Act for the better Government of India.
18. Noted: the 1858 Act transferred the Government of India to Her Majesty. It had to provide for succession of power and authority, rights and liabilities. Section 65 says the Secretary of State in Council may sue and be sued in India and England as a body corporate. It lets all persons take the same suits, remedies and proceedings against him as against the Company. Property vested in Her Majesty is liable to the same judgments and executions as when it was vested in the Company.
19. Held: through this chain of enactments, from the Act of 1858 to the Constitution, the right to the same suits, remedies and proceedings applies to a State Government. It applies to the same extent as to the East India Company.
20. Noted: the next question was the extent of the East India Company's liability for the torts of its servants in the course of employment. The exact question had arisen before the Supreme Court of Calcutta in Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India.
21. Noted: the Calcutta case appears to have been cited before the Bombay High Court in Narayan Krishna Land v. Gerard Norman, Collector of Bombay. The Bombay case was an action in trespass against the Collector over land he believed was Government property.
22. Noted: the Calcutta case was not reported in any Calcutta legal journal. It was a judgment of far-reaching importance and has always been cited as the leading case on the subject.
23. Noted: it was decided by a Full Bench of Peacock, C.J., and Jackson and Wells, JJ. It arose from a reference by the Small Cause Court Judge under section 55 of Act IX of 1850.
24. Noted: servants of the plaintiffs were driving a carriage with a pair of horses on a highway in Calcutta. Government servants in the dockyard at Kidderpore carried a piece of iron funnel negligently and rashly. One of the horses was injured.
25. Noted: the plaintiff company claimed damages from the Secretary of State for India. The Small Cause Court Judge found that the Government servants were wrongdoers who carried the funnel in the centre of the road. He doubted whether the Secretary of State was liable.
26. Noted: the question referred was whether the Secretary of State was liable for damage from the negligence of Government servants. The assumption was that the negligence would have made an ordinary employer liable.
27. Noted: the Calcutta Court first examined whether the proviso to section 25 of the Small Cause Court Act barred the suit. That proviso excluded matters concerning the revenue and acts ordered or done by the Governor, the Governor-General or members of Council in a public capacity. It also excluded acts of judges and judicial officers in office, and suits for libel or slander. The Calcutta Court held that the proviso was not a bar.
28. Noted: the Calcutta Court called the main controversy one of very considerable importance and of some difficulty. It noted that the Queen could not be sued in her own courts as the Company could. Section 65 therefore provided the mode of enforcing the Company's liabilities against the Secretary of State.
29. Noted: the Calcutta Court asked whether the Company would have been liable if the 1858 Act had not been passed. Under 3 & 4 Wm IV c. 85, the Company governed and also traded as merchants. That Act directed the Company to close its commercial business. It held the territorial acquisitions until 30 April 1854 in trust for the Crown.
30. Noted: section 10 of that Act was the ancestor (earlier form) of section 65 of the 1858 Act. It said that while the Company kept possession and government of the territories, all persons could take the same suits and remedies against it for debts and liabilities. The property held in trust was liable to the same judgments and execution as if continued to the Company for its own use.
31. Held: section 10 is materially similar to the latter part of section 65. It was under these provisions that the Calcutta Court held the Secretary of State subject to the same liabilities as the East India Company.
32. Noted: the Advocate-General there argued that a State cannot be liable for damage caused by the negligence of its officers. The Calcutta Court accepted that it is an attribute of sovereignty that a State cannot be sued in its own courts without consent.
33. Noted: in England the Crown could not be made liable for the torts of its servants by petition of right or otherwise. This was laid down by Lord Lyndhurst in Viscount Canterbury v. The Attorney-General. The principle was that the King cannot be guilty of personal negligence or misconduct, so cannot answer for his servants.
34. Noted: the Calcutta Court said these difficulties explain why section 10 expressly provided for the Secretary of State's liability in place of the Company's. The Company itself could not claim the immunity of the sovereign.
35. Noted: that view rested on Grey, C.J., in Bank of Bengal v. The East India Company. He said that having been invested with powers usually called sovereign did not make the Company sovereigns. It also rested on the recital in 53 Geo. III c. 155. That Act vested the territories in the Company without prejudice to the undoubted sovereignty of the Crown.
36. Noted: the Calcutta Court added that the Secretary of State's liability was not personal. It had to be met out of the revenues of India.
37. Held: the Calcutta case also answers the second branch of the argument. That branch said the State cannot be liable for servants engaged on activity connected with State affairs.
38. Noted: under the Constitution the country has established a welfare state. Its functions go beyond law and order and extend to industry, public transport and state trading, among others.
39. Held: the State's activities have wide ramifications. They involve sovereign powers and also its powers as employer in many public sectors. In that setting, "it is too much to claim that the State should be immune from the consequences of tortious acts of its employees".
40. Noted: the present set-up of Government is analogous to the East India Company. The Company acted as a delegate of the British Government with sovereign powers. It also carried on trade and commerce, public transport like railways, posts and telegraphs, and road transport.
41. Noted: the Calcutta Court rejected the Secretary of State's argument. It said his liability to be sued rests on the express enactment in 21 & 22 Vict. c. 106. He is a mere nominal defendant, so that debts and liabilities of the Company can be paid out of the revenues of India.
42. Noted: the Calcutta Court also said the Company were not sovereigns and could not claim the exemption of a sovereign. They were not public servants of Government. They were a company to whom sovereign powers were delegated and who traded on their own account.
43. Noted: the Calcutta Court drew the distinction in its own words. It said there is "a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers" and acts done in the conduct of undertakings that private individuals might carry on. It cited Moodaley v. The East India Company and The Same v. Morton (1 Bro. C.C. 469).
44. Noted: it was argued there that the Company's two-fold character made it hard to decide whether an act was done in the exercise of sovereign powers or in business. The Calcutta Court answered that the Company would not be liable for acts of its officers or soldiers in hostility, in seizing prize property, or in military or naval action. No action would lie even against the officers in such cases.
45. Noted: the Company would have been liable for the negligence of its servants in navigating a river steamer, repairing it, or doing any act connected with the repairs.
46. Noted: the Calcutta Court rightly rejected the argument that liability in contract differs from liability for a wrongful act, and that section 65 covers only the first. The Statute spoke of debts lawfully contracted and liabilities incurred. The phrase liabilities incurred includes a liability from a tortious act.
47. Noted: after considering every argument for the Secretary of State, the Calcutta Court reached a conclusion. The Court accepted the headnote's summary. The Secretary of State in Council is liable for damages from the negligence of Government servants, if the negligence would make an ordinary employer liable.
48. Noted: the State then argued that Article 300 speaks of like cases with reference to the corresponding Indian States. It said the plaintiff must prove that the State of Udaipur, deemed the corresponding State, would have been liable before the Constitution.
49. Noted: the Court gave the history of the formation of Rajasthan from the Government publication The White Paper on Indian States, paragraphs 134 to 138, pages 53-55. Several stages of integration led to the State.
50. Noted: the stages were as follows.
    • The smaller States first formed a Rajasthan Union, which became the United State of Rajasthan, inaugurated on 25 March 1948.
    • Bigger States then joined, and the second Rajasthan Union was inaugurated on 18 April 1948.
    • Further integration of some bigger States produced a new United State of Rajasthan, inaugurated on 30 March 1949.
    • An agreement in Appendix XLI on 10 May 1949 added territory. The area grew from 16,807 sq. miles to 1,28,424 sq. miles. On the inauguration of the Constitution, the State of Rajasthan emerged as a Part B State.
51. Held: the Court cannot go beyond the last stage of integration, which created the State just before the Constitution took effect. The second part of Article 300 must be traced backwards to the 1858 Act (section 65), which itself rested on section 10 of the Act 3 & 4 Wm. IV c. 85.
52. Held: the Court need not travel beyond the stage when the Rajasthan Union was formed on the eve of the Constitution. The State had not shown that the Rajasthan Union would not have been liable for its employee's tort in these circumstances.
53. Noted: the trial issue on this point was issue No. 9. It asked whether the State of Rajasthan is not liable for the act of Defendant No. 1.
54. Held: the State of Rajasthan had not shown that its predecessor, the Rajasthan Union, was not liable by any rule of positive enactment or by common law. The Dominion of India or any constituent Province would have been liable under the 1858 Act. No provision of law, statutory or otherwise, was shown that would free the Rajasthan Union from vicarious liability, analogous to the English common law.
55. Noted: the English maxim rex non potest peccare (the King can do no wrong) made it impossible to sue the Crown for the tort of its servant. The Court said the rule had become outmoded in the context of modern developments in statecraft. Parliament therefore intervened by the Crown Proceedings Act, 1947, which came into force on 1 January 1948.
56. Held: "the very citadel of the absolute rule of immunity of the sovereign has now been blown up". Section 2(1) of the Act makes the Crown liable in tort as a private person of full age and capacity. This covers torts of its servants or agents, subject to the other provisions of the Act.
57. Noted: the law applicable to India for torts of Government servants was far ahead of the common law before the 1947 Act, which revolutionised the law in the United Kingdom. The State did not claim that the English common law, before its alteration in 1948, applied to the Rajasthan Union in 1949 or earlier.
58. Held: the State of Rajasthan failed to discharge the burden of proof on issue No. 9.
59. Held: on first principles, there is no justification in principle or in public interest for denying vicarious liability. The State should be as liable for a tort by its servant, within the scope of his employment and functioning as such, as any other employer.
60. Noted: the English immunity rested on old feudalistic notions of justice. The King was incapable of doing wrong, so he could not authorise one, and he could not be sued in his own courts. In India, since the East India Company, the sovereign has been held liable to be sued in tort or contract. The common law immunity never operated in India.
61. Noted: the Constitution established a Republican form of Government. One objective is a Socialistic State with varied industrial and other activities and a large army of servants.
62. Noted: the Court has deliberately departed from the common law rule that a civil servant cannot sue the Crown. In State of Bihar v. Abdul Majid it recognised the right of a Government servant to sue for arrears of salary.
63. Held: when the common law immunity has disappeared from the land of its birth, there is no legal warrant for holding it valid in India, particularly after the Constitution.
64. Held: the cause of action arose after the Constitution came into effect. Upholding the State's vicarious liability only recognises an old rule going back more than 100 years at least.
65. Noted: Article 300 saves the right of Parliament or a State Legislature to make a law on this. Until the Legislature expresses a contrary intention, the law is what it has been since the days of the East India Company.
66. Held: there is no merit in the appeal.

Concurring and dissenting opinions

The judgment of the Court was delivered by Sinha, C.J. The report records no separate, concurring or dissenting opinion by Kapur, Hidayatullah, Shah or Mudholkar, JJ. The headnote says the extent of the State's liability is that of the East India Company as decided in the Calcutta case.

Authorities

• Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India, (1868-69) 5 Bom. H.C.R. 1 (Supreme Court of Calcutta, Full Bench): approved. The Court treated it as the leading case. It held the Secretary of State liable for servants' negligence that would make an ordinary employer liable. The headnote records "approved".
• Narayan Krishna Land v. Gerard Norman, Collector of Bombay (Bombay High Court): mentioned. The Calcutta case appears to have been cited in it. It was an action of trespass over land the Collector believed to be Government property.
• Viscount Canterbury v. The Attorney-General: cited by the Calcutta Court. Lord Lyndhurst held the Crown could not be made liable for servants' torts by petition of right.
• Bank of Bengal v. The East India Company: cited by the Calcutta Court. Grey, C.J., said that sovereign powers did not make the Company sovereigns.
• Moodaley v. The East India Company and The Same v. Morton (1 Bro. C.C. 469): cited by the Calcutta Court for the distinction between acts of sovereign powers and acts of undertakings private persons might carry on.
• State of Bihar v. Abdul Majid, [1254] S.C.R. 786 (citation as printed in the headnote): referred to. The Court recognised a Government servant's right to sue for arrears of salary and so departed from the common law rule.
• Also cited in footnotes: the footnote text is not reproduced in the source file, so no case is recorded as cited only in footnotes.

Provisions mentioned

• Article 300(1) of the Constitution: the Government of a State may sue or be sued by the name of the State. The State may sue or be sued in the like cases as the corresponding Province or Indian State, subject to laws made under the Constitution.
• Articles 294 and 295 of the Constitution: they pass on property, assets, rights, liabilities and obligations of the former Provinces and Indian States to the successor. They do not define those rights and liabilities.
• Article 133(1)(c) of the Constitution: the High Court's certificate that the case was fit for appeal to the Supreme Court. The Court described the appeal as one on a certificate under that Article.
• Section 176(1) of the Government of India Act, 1935 (25 & 26 Geo. V c. 42): the Federation and Provinces may sue or be sued in the like cases as the Secretary of State in Council.
• Section 32 of the Government of India Act, 1915 (5 & 6 Geo. V c. 61): the Secretary of State in Council may sue and be sued as a body corporate. Persons have the same remedies as against the East India Company.
• Section 65 of the Government of India Act, 1858 (21 & 22 Vict. c. 106): all persons may take the same suits, remedies and proceedings against the Secretary of State in Council as against the Company.
• Section 10 of 3 & 4 Wm. IV c. 85: the earlier provision that was the ancestor of section 65. It made the Company liable to the same suits, remedies and proceedings during its government of the territories.
• Section 25 proviso of the Small Cause Court Act and section 55 of Act IX of 1850: considered by the Calcutta Court. The proviso was held not to bar the suit.
• 53 Geo. III c. 155: the Act whose recital vested the territories in the Company without prejudice to the Crown's undoubted sovereignty.
• Section 2(1) of the Crown Proceedings Act, 1947 (United Kingdom): the Crown is subject to the liabilities in tort of a private person of full age and capacity.

Judgement

1. The Court dismissed the appeal of the State of Rajasthan.
2. The State must pay costs.
3. The High Court's decree stands. It gave the plaintiffs Rs. 15,000 against the State, with costs in both courts below.

Legal Principle / Ratio

The State is as liable in tort as any other employer for a wrong by its servant within the scope of his employment and functioning as such. Article 300(1) sends the question back to the position of the East India Company, which was liable for acts not done in exercise of sovereign power. Driving a Government jeep from a workshop to the Collector's residence is not such an act.

Key holding: "there is no justification, in principle, or in public interest, that the State should not be held liable vicariously".

Subsequent Treatment

Kasturi Lal v. State of U.P. (Kasturilal Ralia Ram Jain v. State of Uttar Pradesh), 1965 AIR 1039, 1965 SCR (1) 375, Supreme Court of India, decided 29 September 1964. Bench: Gajendragadkar (C.J.), Wanchoo, Hidayatullah, Raghubar Dayal and Mudholkar, JJ. The file has no numbered paragraphs.

• The headnote records Vidhyawati as distinguished.
• The appellant argued that decreeing his claim would only extend the principle in Vidhyawati. The Court conceded that some observations in Vidhyawati support that argument and make it prima facie attractive.
• The Court said the facts of Vidhyawati fall in a category of claims distinct from its own facts.
• It said the Vidhyawati point had not been clearly or emphatically brought out. It then explained the basis: a driver taking the jeep to the Collector for his use was on a task not referable to the delegation of sovereign powers.
• It said the plea of immunity must be strictly limited to the area of employment referable to sovereign powers. Employment of a driver for a civil servant's jeep is not connected with sovereign power at all.
• The Court said that limiting State immunity in this way is exactly what Vidhyawati had done.
• In Kasturi Lal, the negligence was by police officers dealing with property seized under statutory powers of arrest, search and seizure. The Court called these sovereign powers. The claim failed.

Chairman Railway Board v. Chandrima Das (The Chairman, Railway Board and Others v. Mrs. Chandrima Das and Others), AIR 2000 SC 988, (2000) 2 SCC 465, Supreme Court of India, decided 28 January 2000. Bench: R.P. Sethi and S. Saghir Ahmad, JJ. The file has no numbered paragraphs for this passage.

• The Court said that Vidhyawati held Government vicariously liable for the torts of its employees. It noted that case concerned a claim by the heirs of a person killed by the driver of a Government vehicle.
• It listed later decisions on the same principle: State of Gujarat v. Memon Mahomed Haji Hasan, Smt. Basava Kom Dyamogouda Patil v. State of Mysore, N. Nagendra Rao & Co. v. State of A.P. and State of Maharashtra v. Kanchanmala Vijaysing Shirke.
• It held that reliance on Kasturi Lal could not help the appellants, because later decisions had not followed it.

Kaushal Kishor v. State of U.P. (Kaushal Kishor v. State of Uttar Pradesh), Writ Petition (Criminal) No. 113 of 2016, Supreme Court of India (Constitution Bench), decided 3 January 2023. Judgment of V. Ramasubramanian, J., signed by S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna and V. Ramasubramanian, JJ.

• The Court said Vidhyawati followed State of Bihar v. Abdul Majid (para 146).
• It quoted Vidhyawati against sovereign immunity: when the common law immunity has disappeared in the United Kingdom, there is no legal warrant for it in India (para 146).
• It reproduced the passage on the welfare state, the State's wide activities and the Calcutta case's answer to the second branch of the immunity argument (para 147).
• It said that, despite Abdul Majid and Vidhyawati, the Court fell into a slippery slope in Kasturi Lal (para 148).
• It added that Kasturi Lal was diluted after nearly 30 years (para 149).

Other later cases (not summarized): Smt. Basava Kom Dyamogouda Patil v. State of Mysore, AIR 1977 SC 1749; State of Gujarat v. Memon Mahomed Haji Hasan, AIR 1967 SC 1885. These were not fetched as supplementary files.

Comparative Analysis

• Vidhyawati and Kasturi Lal: Vidhyawati held the State liable for a jeep driver's negligence. Kasturi Lal held it not liable for police negligence in keeping seized gold. Kasturi Lal said Vidhyawati rested on the non-sovereign nature of the task.
• Vidhyawati and Chandrima Das: Chandrima Das cited Vidhyawati for the rule that Government is vicariously liable. It held that running the Railways and its Yatri Niwas is commercial activity and not sovereign power.
• Vidhyawati and Kaushal Kishor: Kaushal Kishor listed Vidhyawati with Abdul Majid. It then said the Court fell into a slippery slope in Kasturi Lal despite both.
• The Crown Proceedings Act, 1947: Vidhyawati used the English Act as a reason the immunity could not stand in India. The Court said Indian law before 1948 was already ahead of the English common law.

Critical Analysis

Analysis based on the judgment text.

• The Court reached its result by tracing Article 300(1) back to the 1858 Act. It decided the burden of proof on the State without evidence of what the pre-Constitution State of Udaipur had done.
• The judgment does not define the limits of sovereign power. It draws the line between sovereign and other acts only through the Calcutta case's examples (hostility, prize property, military or naval action).
• Kasturi Lal said the Vidhyawati point had not been clearly brought out. The reported judgment does not set out a test for sovereign functions.
• The Court left open the power of Parliament and State Legislatures to make a law on the subject. It said the existing law holds until they do.

Significance

• It applied the chain of Acts back to the East India Company to hold a State vicariously liable in tort under Article 300(1).
• It rejected the English common law sovereign immunity of the Crown for India, before and after the Constitution.
• It is read with Kasturi Lal (1965), which limited it to non-sovereign functions.
• The Court said Article 300 saves the power of Parliament and State Legislatures to make a law. Until they do, the old law continues.

Exam-Important Points

• Rule: the State is vicariously liable as any other employer for torts of its servants within the scope of employment. Trap: this is not a rule that the State is always liable. Acts of sovereign power were left outside.
• Article 300(1): the second part (in the like cases) fixes the extent of liability. Trap: Articles 294 and 295 only pass on rights and liabilities.
• Chain of provisions: trace Article 300(1) back through these provisions.
  • Section 176(1) of the 1935 Act.
  • Section 32 of the 1915 Act.
  • Section 65 of the 1858 Act.
  • Section 10 of 3 & 4 Wm. IV c. 85.
• Which State: the Rajasthan Union formed on the eve of the Constitution is the corresponding State. The Court did not go behind the last stage of integration.
• Burden: the State failed to show that the Rajasthan Union was not liable (issue No. 9).
• Leading case: Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India. The East India Company was not sovereign and could not claim the exemption of a sovereign.
• Crown Proceedings Act, 1947: in force 1 January 1948. Section 2(1) makes the Crown liable in tort as a private person. The Court said it blew up the citadel of immunity.
• Result: appeal dismissed with costs. The High Court's Rs. 15,000 stood.
• Later law: Kasturi Lal (1964) distinguished it. Chandrima Das (2000) said Kasturi Lal was no longer available in a welfare State. Kaushal Kishor (2023) called it a slippery slope.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.