Liability of the State for Torts

Article 300, sovereign and non-sovereign functions, the decline of sovereign immunity, and public law compensation

In one minute

The State can be sued in tort. Article 300 of the Constitution says so, in the same cases as before the Constitution. The old English rule that "the King can do no wrong" gave the State immunity for acts done in the exercise of sovereign power.

The Supreme Court has cut back that immunity. The State is liable for non-sovereign acts, and it must pay compensation for violation of fundamental rights. In exams, expect the sovereign and non-sovereign test, the cases from P. and O. Steam Navigation to Chandrima Das, and foreign sovereigns and act of state.

Exam focus

Frequency: Occasionally asked
Usually asked as: Both (long answer and short answer)

Legal provision

Article 300(1), Constitution of India: the Government of India may sue or be sued in the name of the Union of India, and a State in the name of the State. They may sue and be sued in the same cases as the Dominion of India or the Provinces could before the Constitution, subject to any law made by Parliament or a State Legislature.
Section 79 and section 80, Code of Civil Procedure, 1908: the authority to be named in a suit against the Government, and the two-month notice before suit.
Section 86, CPC: a foreign State can be sued only with the consent of the Central Government.
Articles 21, 32 and 226: the Supreme Court and the High Courts award compensation for violation of fundamental rights.
Article 361(4): civil proceedings against the President or a Governor for personal acts need two months' notice.

Meaning and definition

Sovereign immunity is the rule that the State cannot be sued in its own courts for torts committed in the exercise of sovereign power. It comes from the English maxim rex non potest peccare (the King can do no wrong). The Crown could not be sued in tort without its consent.

In England, the Crown Proceedings Act, 1947 ended most of this immunity. India has no equivalent Act. Parliament has not made a law under Article 300, so courts decide each case by applying the pre-1950 position and the Constitution.

The test that courts used is a distinction between two kinds of State function.

Sovereign functions. Acts that only a sovereign can do, such as making war, keeping armed forces, administering justice, and exercising coercive statutory powers.
Non-sovereign functions. Acts that a private person could also do, such as running transport, hospitals, factories or vehicles.

Detailed explanation

Step 1: the old position, before 1950

Under the Government of India Act, 1858, the Secretary of State for India could be sued as the East India Company could have been. In P. and O. Steam Navigation Co. v. Secretary of State for India (1861), the Supreme Court of Calcutta held that the Secretary of State was liable for the negligence of a servant driving a carriage, because the act was one a private person could do. It said that acts done in the exercise of sovereign powers, such as waging war or making treaties, were outside the court's jurisdiction. This case began the sovereign and non-sovereign test.

Later cases followed the line. In Nobin Chunder Dey v. Secretary of State (1875), the Calcutta High Court held that the grant of a licence to a contractor was an act of the sovereign and no suit lay for breach of it in tort.

Step 2: the position after 1950 and Article 300

Article 300 carries forward the earlier position. It does not define liability. The Supreme Court therefore applied the sovereign and non-sovereign test.

State of Rajasthan v. Vidyawati (1962). A government jeep, being driven back from a workshop, ran down a pedestrian. The Supreme Court held the State liable like a private employer. Running a vehicle is not a sovereign function.
Kasturi Lal Ralia Ram Jain v. State of U.P. (1965). Police seized a bullion dealer's gold, and the head constable who kept it stole it and fled to Pakistan. The Supreme Court held the police negligent but held the State not liable. Arrest, search and seizure are sovereign powers. The Court urged the legislatures to change the law.

Step 3: the decline of sovereign immunity

N. Nagendra Rao & Co. v. State of A.P. (1994). The Supreme Court confined Kasturi Lal to its facts and held the State liable for the negligence of its officers in the exercise of statutory powers.
Public law compensation. In Rudul Sah v. State of Bihar (1983), Bhim Singh v. State of J&K (1985) and Nilabati Behera v. State of Orissa (1993), the Supreme Court awarded money under Articles 32 and 226 for violation of Article 21. In Nilabati Behera it said that the defence of sovereign immunity does not apply to such a claim and confined Kasturi Lal to claims in tort.
D.K. Basu v. State of West Bengal (1996). The Court laid down eleven requirements for arrest and detention, and held that compensation for custodial violence lies in public law in addition to a tort suit.
Chairman, Railway Board v. Chandrima Das (2000). A Bangladeshi woman was gang-raped by men including Railway employees at Howrah. The Supreme Court upheld the award of Rs 10 lakhs and said that the sovereign immunity theory is no longer available in a welfare State.
Later view. In Kaushal Kishor (2023), Ramasubramanian, J. of the Constitution Bench described the course taken in Kasturi Lal as a slippery slope.

Example. A police constable in Hyderabad beats a suspect to death in a lock-up. The family sues the State. Under public law the Supreme Court or High Court can award compensation under Article 32 or 226, and the State cannot plead sovereign immunity.

Step 4: foreign sovereign immunity

This is a different idea. A foreign State, ruler or ambassador cannot be sued in an Indian court without the written consent of the Central Government (section 86, CPC). The rule protects relations between nations. It is also linked to diplomatic immunity.

Step 5: act of state

An act of state is an act of the sovereign done towards another State or its subjects, for example annexation of territory. A court cannot question it. In Secretary of State v. Kamachee Boye Sahaba (1859), the Privy Council treated the annexation of the Carnatic as an act of state. The defence is not available against a citizen of India for acts done in India. It also cannot defeat a claim for violation of fundamental rights.

Step 6: the position of public servants

A public servant is personally liable for his own torts. The State is vicariously liable for torts committed in the course of non-sovereign work. Good faith acts are protected by some Acts. The President and Governors have a special rule in Article 361.

How the State's liability developedHow to read this: read the boxes from left to right on a wide screen, or from top to bottom on a phone. Green marks the case that cut back immunity.

1861P. and O. Steam Navigation Co. separates sovereign and non-sovereign acts.
1962Vidyawati: the State is liable for a government driver's negligence.
1965Kasturi Lal: no liability for loss of seized gold; police seizure is sovereign.
1983 to 1993Rudul Sah, Bhim Singh and Nilabati Behera: compensation under Articles 32 and 226.
1994N. Nagendra Rao: Kasturi Lal confined to its facts.
2000Chandrima Das: immunity is not available in a welfare State.

Don't confuse: sovereign and non-sovereign functions, and public law and tort remedies

Two comparisons help. The first is between the two kinds of function.

Point	Sovereign function	Non-sovereign function
Nature	Only the State can do it	A private person could also do it
Examples	Defence, police seizure, administering justice	Running a bus, hospital or official vehicle
Tort liability	Historically immune (Kasturi Lal)	Liable like a private employer (Vidyawati)
Modern position	Immunity much reduced	Liability is settled

The second is between the two routes to compensation.

Point	Tort suit	Public law compensation
Forum	Civil court	Supreme Court or High Court under Articles 32 and 226
Sovereign immunity	A possible defence	Not available (Nilabati Behera)
Basis	Wrongful act and damage	Violation of a fundamental right, usually Article 21

Inside non-sovereign function. A State road transport bus in Nellore is driven rashly and injures a cyclist. The State is liable like any bus operator.

Just outside it (sovereign). The Army fires on a firing range as part of training, within a notified area, and a trespasser is hurt. This is a sovereign function of defence, and the older rule would give immunity. Compensation for a violation of the right to life would still be open in public law.

Common mistakes

Writing that the State cannot be sued in tort. It can, under Article 300.
Treating Kasturi Lal as the settled law today. Later cases confined it.
Forgetting the public law remedy under Articles 32 and 226, where immunity is not available.
Confusing foreign sovereign immunity with the sovereign function test. They are different ideas.
Saying Article 300 defines the State's liability. It only carries forward the old position.

Apply it

Problem

A government hospital in Anantapur is run by the State. A nurse negligently gives a patient the wrong medicine and the patient suffers lasting harm. The patient sues the State for damages. The State pleads sovereign immunity. Is the plea good?

Issue. Is running a government hospital a sovereign function?

Rule. The State is liable for torts of its servants in non-sovereign functions, which are acts that a private person could also do (State of Rajasthan v. Vidyawati). Sovereign immunity protects only functions that are the State's alone.

Application. A hospital is something a private person can run. The nurse's negligence is a tort of a servant in a non-sovereign function.

Conclusion. The plea fails. The State is vicariously liable.

Leading case laws

State of Rajasthan v. Vidyawati (1962)
Facts. A government jeep returning from a repair shop ran down a pedestrian.

Principle. The State is liable for the negligence of its driver. Running a vehicle is not a sovereign function.

Why it matters. It put the State on the same footing as a private employer for non-sovereign acts.
Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh (1965)
Facts. Police seized a bullion dealer's gold. A head constable stole it and fled to Pakistan.

Principle. The State was not liable. Arrest, search and seizure are sovereign powers.

Why it matters. It is the leading authority on sovereign immunity, later confined.
Rudul Sah v. State of Bihar (1983)
Facts. Rudul Sah stayed in jail for fourteen years after his acquittal.

Principle. The Supreme Court awarded compensation in a habeas corpus petition under Article 32.

Why it matters. It started public law compensation for violation of Article 21.
Bhim Singh v. State of Jammu & Kashmir (1985)
Facts. An MLA was arrested at night and held in unlawful custody for four days.

Principle. The Supreme Court held his rights under Articles 21 and 22(2) violated and awarded Rs 50,000.

Why it matters. It confirmed compensation for unlawful detention.
Nilabati Behera v. State of Orissa (1993)
Facts. A young man died in police custody.

Principle. The Supreme Court awarded compensation under Articles 32 and 226. Sovereign immunity does not apply, and Kasturi Lal was confined to claims in tort.

Why it matters. It separated public law compensation from tort.
D.K. Basu v. State of West Bengal (1996)
Facts. A letter to the Chief Justice about custodial deaths was treated as a public interest petition.

Principle. The Court laid down eleven requirements for arrest and detention and held that compensation for custodial violence lies in public law.

Why it matters. It set safeguards that police must follow.
Chairman, Railway Board v. Mrs. Chandrima Das (2000)
Facts. A Bangladeshi woman was gang-raped by men including Railway employees at Howrah.

Principle. The Supreme Court upheld Rs 10 lakhs as compensation and said the sovereign immunity theory is no longer available in a welfare State.

Why it matters. It applied Article 21 to a foreign national and rejected immunity for a commercial undertaking.

How to write this answer in the exam

5-mark answer

State Article 300 and the maxim rex non potest peccare.
Define sovereign and non-sovereign functions.
Give Vidyawati and Kasturi Lal.
Note that immunity is much reduced, and public law compensation exists.

10-mark answer

Meaning of sovereign immunity and Article 300.
P. and O. Steam Navigation Co. (1861).
Vidyawati (1962) and Kasturi Lal (1965).
N. Nagendra Rao (1994) and the decline of immunity.
Public law compensation: Rudul Sah, Bhim Singh, Nilabati Behera, D.K. Basu, Chandrima Das.
Foreign sovereign immunity and act of state.
Conclusion.

Key points to remember

Article 300 carries forward the pre-1950 position and does not define liability.
The State is liable for non-sovereign functions (Vidyawati) and was not liable for sovereign ones (Kasturi Lal).
P. and O. Steam Navigation Co. (1861) began the sovereign and non-sovereign test.
Sovereign immunity is not a defence against public law compensation under Articles 32 and 226.
Foreign State: suit only with the Central Government's consent (section 86 CPC).
Act of state cannot be used against Indian citizens for acts in India.

Quick self-test

1. What does Article 300 provide?

The Union and the States may sue or be sued in the same cases as the Dominion and the Provinces could before the Constitution, subject to any law of Parliament or the State Legislature.

2. How did Vidyawati differ from Kasturi Lal?

In Vidyawati the State was liable because running a vehicle is not a sovereign function. In Kasturi Lal it was not liable because police seizure is a sovereign power.

3. Does sovereign immunity bar compensation under Articles 32 and 226?

No. The Supreme Court held in Nilabati Behera that sovereign immunity does not apply to public law compensation for violation of fundamental rights.