The theory was “The King can do no wrong” under English Common Law, and thus the King was not responsible for the wrongs of his servants. But the status of the old Common Law theory was altered in England by the Crown Proceedings Act, 1947. Earlier, in the course of their employment, the King could not be sued in tort either for wrongdoing allegedly sanctioned by it or performed by its servants. The Crown Proceedings Act was passed with the increasing functions of the State, now the Crown is liable for a tort committed by its servants just like a private citizen. Similarly, the Federal Torts Claims Act, 1946 in America provides the rules that significantly determine the State’s liability issue.

There have been many fascinating discussions in the legal arena regarding the tortuous duty of the state. There is no law in India regulating the responsibility of the State for the crimes committed by its servants. It is article 300 of the Constitution of India, 1950, which enumerates the liability of the Union or State in tortious act of the Government.

Section 176 of the Government of India Act, 1935, gave rise to Article 300 of the Constitution. This can be traced back to Section 32 of the 1915 Government of India Act, whose genesis can be found in Section 65 of the 1858 Government of India Act. “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.” was given in Section 65 of the Government of India Act, 1858.

It can thus be seen that the Government of India and the Government of each State are in line with the succession of the East India Company by the chain of enactment starting with the Act of 1858. The government’s responsibility, in other words, is the same as that of the East India Company prior to 1858.

Article 300 reads as:

The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution –
(a) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.

In view of the above, the observation of the Supreme Court in N.Nagendra Rao Company V. State of AP should be noted. The first report of the recommendations of the Law Commission for constitutional recognition of the duty of the State was accepted by the Honorable Court, as was done in England through the Crown Proceedings Act, 1947 and in the United States through the Federal Torts Claims Act, 1946. It then held that at this time, the doctrine of sovereign immunity was not valid.

It is disappointing that the recommendations made by the Law Commission long ago in 1956 and the proposals made by the Supreme Court have not yet been brought into force. The unsatisfactory state of affairs, in this respect, is against social justice in a welfare state.

The first case, which seriously discussed the question of Sovereign Immunity, is the Pand O Navigation Company V. Secretary of State for India, in this case a piece of iron funnel carried by some workmen for conducting repairs of Government steamer hit the plaintiff horse-driven carriage and got injured. The Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary of State for India- in council for the negligence of the servants employed by the Government of India. The Small Causes Court judge decided that the dockyard servants were negligent, though he expressed some doubt as to whether the plaintiff’s coachman had not advanced in the manner that was more than absolutely necessary. He stated the case to the Supreme Court. The Supreme Court delivered a very learned judgement through the Chief Justice. The Supreme Court at Calcutta, speaking through Peackok, CJ held that “the Government will be liable for the actions done by its servants while doing non-sovereign functions but it won’t be liable for injuries caused while pursuing sovereign functions.

Similarly in Nobin Chunder Dey V. Secretary of State, the Calcutta High Court gave full effect to the remarks in rejecting the plaintiff’s plea for damage against wrongful refusal to him of a licence to sell certain excisable liquours and drugs resulting in the closure of his business on the ground that grant or refusal of a licence was a sovereign function lying beyond the reach of the tortious liability of the State. Since then, the distinction between the sovereign and non-sovereign functions of the State has been the basis of a number of judicial pronouncements.

On the other hand, in Secretary of State V. Hari Bhanji, the court has denied any distinction between sovereign and non-sovereign functions and held that where an act is done under the sanction of municipal law and in the exercise of powers conferred by that law, the fact that it is done in the exercise of sovereign function and is not an act which could possibly be done by a private individual does not oust its justifiability.

Keeping in view of uncertainty of State liability and different judicial pronouncements, the Law Commission in its First Report, 1956 highlighted the need for a comprehensive legislation in the pattern of the Crown Proceedings Act, 1947 to fix up tortious liability of the Government. Based on the Law Commission Report, the Government (Liability in Torts) Bill was presented in the Parliament in the year 1967, but it has not yet become the Law. The bill seeks to define the liability of the Government towards third parties for the wrongs of its servants, agents and independent contractors employed by it.

Conclusion
It would be worth noting, in the light of the above, the observation of the Supreme court in N.Nagendra Rao Company V. State of AP. The Honorable Court acknowledged the first report of the Law Commission’s proposals for constitutional approval of the State’s responsibility, as was achieved in England through the Crown Proceedings Act, 1947 and in the United States through the Federal Torts Claims Act, 1946. It therefore held that there was no validity to the doctrine of sovereign immunity at the present time.

It is disappointing that the recommendations made long ago in 1956 by the Law Commission and the suggestions made by the Supreme Court have not yet been put into effect. In this respect, the insatisfactory state of affairs is against social justice in a welfare state. In the absence of State Liability Laws, the courts would obey the recent decision of the Supreme Court rather than Kasturi Lal in line with social justice demanded by the modified circumstances and the principle of welfare state.

Author – Vedika Ghai (Intern of Prerna Foundation)