Since governing institution are the governing institution, people gave less emphasis on its liabilities but gradually there were cases in which the state was sued. This led to the formation of Constitutional Tort Law which imposed a liability on the state for the wrongful acts of its servants giving the exception of it acting within its sovereign powers. The Latin maxim Res Non Potest Peccare which stated than king can do wrong gave rise to the concept of sovereign functions. But later it was seen that state was liable for its and its servants acts just like private individuals.

Constitutional tort is the concept of the vicarious liability of the state. Vicarious liability of state means whether the government employer will be liable for the acts of his servant. But its stated that employer will be only liable when his servant is performing sovereign functions. Sovereign functions mean functions of the state which is not wrong and not answerable in any court of law.

According to section 300, the Government of India can be sued by the name of Union of india and government of state can be sued by the name of the State. The Constitution makes the Union and the State as juristic persons capable for owning and acquiring property, making contracts, carrying on trade or business just as private individuals.

The state of Rajasthan V. Mst. Vidhyawati (1962 AIR 933, 1962 SCR Supl. (2) 989)

the facts of this case is, the first defendant of the case Lokumal, temporary driver of jeep of collector of Udaipur was driving back the car from the workshop, when he knocked down Jagdishlal, who was walking on the footpath along the side of the road, he had multiple injuries due to which he died in three days. His widow and three years old minor daughter claimed for rupees 25000 from both the defendants. Initially the Supreme Court recognised that the government should be sued but later held that the act of the servant was not in exercise of sovereign functions and thus State would not be immune to defence.

Peninsular and Oriental Steam Navigation Company V. Secretary of state for India (1861)

The facts of this is case plaintiff was driving a carriage which was drawn by pair of horses. When the carriage was passing through defendant’s dockyard, some men were carrying heavy metal on the road. When they saw carriage approaching, they got alarmed and dropped the iron and ran away. The iron fell with great noise which injured the horse. The Company filed a suit against the Secretary of State for India for the damages for injury to its horses caused by the negligence of the Government servants. The court held that the damage was done to the plaintiff in the exercise of a non-sovereign function i.e. maintenance of the dockyard and hence the Government was liable for the torts of the torts of the employees.

The state will be held liable only when they are acts are non-sovereign in nature and will be immune to defence when acts are done under lieu of sovereign functions.


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