Vicarious Liability of the State

Author: Sachi Upadhyay

The legal adage “Qui facit via alium facit per se,” which means “he who acts through another performs the deed himself,” and respondeat superior which the superior’s responsibility for their subordinate’s actions, or, in a broader sense, the responsibility of any third party who had the “right, ability, or duty to control” a violator’s activities are the two priciples associated with Vicarious liability. Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act done by another person, may arise.[1] is associated to vicarious liability. Liability of the principal for the tort of his agent; Liability of partners for each other’s tort; Liability of the master for the tort of his servant; Liability of the state or liability of the Administration are all typical examples of such a liability.


  1. There must be a relationship of a certain kind.
  2. The wrongful act must be related to the relationship in a certain way.
  3. The wrong has been done within the course of employment.


The term “administration” is used interchangeably with “state” or “government” in this context. The extent to which the administration is responsible for the torts committed by its employees is a difficult question to answer, especially in emerging nations with ever-expanding state operations. The principles of public law inherited from British Common law and the provision regulate the government’s tort responsibility. The East India Company developed vicarious liability of state in 1858. Article 300, on the other hand, went into force in 1950.

The functions of the secretary of state are divided into sovereign and non-sovereign as adjudged by the hon’ble Supreme Court of Calcutta in the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India[2].

While there is no explicit legislation in India dealing with the State’s vicarious liability, Article 300 of the Indian Constitution states that the Union of India or the Government of State can sue and be sued in the same way that any other person can. The tortious responsibility of the government is also known as the state’s vicarious liability.


The adage in English Common Law was that “The King can do no wrong,” thus the King was not responsible for the wrongdoings of his subordinates. The Crown Proceedings Act of 1947, however, has modified the standing of the ancient Common law maxim in England. Previously, the King could not be sued in tort for wrongs that it had really approved or that its subordinates had done while on the job. With the expansion of state duties, the Crown Proceedings Act was established, making the crown responsible for torts committed by its servants in the same way as a private individual is. Similarly, in the United States, the Federal Tort Claims Act of 1946 establishes the rules that govern the subject of state responsibility.


 In India there are no statutory provisions that address the State’s culpability, unlike the Crown Proceedings Act, 1947 (England). The nature and character of the East India Company’s position prior to 1858 has been intertwined with Indian law about the state’s accountability for the tortious conduct of its workers. As a corollary, it is important to trace the evolution of the law on this issue, as set forth in Article 300 of the Constitution.

The situation of State responsibility is as follows: Clause (1) of Article 300 of the Constitution states that the Government of India may sue or be sued in the name of the Union of India, and the Government of a State may sue or be sued in the name of the State; second, that the Government of India or a State may sue or be sued in connection to their respective affairs in the same situations as the Dominion of India and the corresponding Provinces or Indian States might have sued or been sued “if this Constitution had not been enacted”. Third, the second mentioned rule shall be subject to any restrictions established by an Act of Parliament or the Legislature of such State passed under the Constitution’s authority.

Therefore, one must first determine the amount of the East India Company’s culpability in order to comprehend the administration’s current liability boundaries, as the administration’s current liability is a direct descendant of the East India Company’s.

The East India Company began its operations in India as a purely commercial enterprise, but it eventually gained sovereignty.


There are several grounds to believe that the state’s vicarious responsibility is justified.  The state has a stronger financial situation. The government encourages its employees to take reasonable precautions to avoid incidents that might endanger a third party. This is due to the fact that the government is obliged to pay any compensation for the employee’s actions. The state profiteers from the employee’s actions. As a result, it should be able to cover damages caused by the employee’s actions. The employee is bound by the State’s orders in all of his or her actions while on the job. As a result, the acts are ultimately the acts of the state. Because the State has the authority to select and fire its personnel, it must monitor their work.


Pre-constitutional Jurisdictions

Peninsular and Oriental Steam Navigation Company v. Secretary of State for India[3]

The Supreme Court of Calcutta’s ruling in this case opens a discussion of pre-Constitutional examples of the government’s tort responsibility. The iron shattered with a loud bang, injuring one horse and startling the plaintiff’s horses, who surged forward forcefully and landed on the iron. The Company sued the Secretary of State for India for damages resulting from an injury to its horse caused by the Government of India’s officials’ carelessness. Because the negligent conduct was not done in the exercise of a sovereign power, the Secretary of State for India was found responsible for the losses caused by Government officials’ carelessness.

The Court distinguished between actions carried out in the exercise of “non-sovereign authority,” that is, acts carried out in the performance of enterprises that might be carried out by private persons without such power. The East India Company had a dual personality —

  • in the capacity of a sovereign authority; and
  • as a commercial enterprise.

The Company’s responsibility could only be limited to its business operations, not to acts performed in the exercise of authorised sovereign power.

Nobin Chandra Dey v. Secretary of State for India [4]

The Calcutta High Court extended this theory of immunity to actions performed in the performance of sovereign powers in Nobin Chander Dey v. Secretary of State. In this case, the plaintiff claimed that the government had established a contract with him for the issuance of a licence to sell ganja and had broken that contract. The High Court ruled that no breach of contract had been proven based on the evidence. Second, even if there existed a contract, the conduct was carried out in the exercise of sovereign authority, making it unenforceable.

Secretary of State v. Hari Bhanji [5]

The Madras High Court ruled in this case that state immunity was limited to activities of the state. The judgement in the P & O Case did not extend beyond actions of state, but it did provide examples of instances where immunity was attainable.

The fact that it is carried out by sovereign authorities and is not an act that might be carried out by a private individual does not negate the civil court’s jurisdiction. The Hari Bhanji decision in Madras states that the government may not be responsible for activities related to public safety that are not acts of the state.

Post Constitution Judicial Decisions

State of Rajasthan v. Vidyawati [6]

The respondents filed a suit for damages caused by a State employee, and the case raised the question of whether the State was liable for the tortious act of its servant – The Court held that the State’s liability in respect of the tortious act committed by its servant while employed and functioning as such was comparable to that of any other employer.

In this case, it was decided that the State, like any other employer, should be responsible for torts committed by its servant while in the course of his employment and functioning as such.

 Kasturi Lal v. State of U.P. [7]

The suit was ordered by the trial court, but the decision was overturned by the High Court on appeal. When the case was brought to the Supreme Court, the court determined that the police officers were careless in dealing with the plaintiff’s property and that they had not complied with the terms of the UP Police Regulations based on an examination of the evidence.

The plaintiff’s claim was dismissed by the Supreme Court on the grounds that “the act of carelessness was done by the police officers when dealing with Ralia Ram’s property, which they had confiscated in exercise of their statutory duties.”

State of M.P. v. Chironji Lal[8]

A fresh question was presented to the court about the payment of damages for the loss caused by the police lathi-charge in an illegal and unwanted circumstance. The police allegedly used lathi-charge deliberately and without good cause, causing damage to the plaintiff’s property. The suit was dismissed on the grounds that regulating processions and maintaining peace and order is a sovereign responsibility of the state.

Satyawati Devi v. Union of India [9]

The Delhi High Court ruled that transporting a hockey team to the Air Force Station in a military truck to play a game is not a sovereign function. In one example, an Air Force truck was transporting an Indian Air Force Station hockey team to a game. The driver was about to park the car after the match ended when he triggered the tragic accident due to his recklessness.

Union of India v. Sugrabai [10]

The transport of military equipment from the Artillery School’s workshop is not a sovereign function, according to the Bombay High Court.

When a military driver driving a motor vehicle transporting a Records Sound Ranging machine from a military workshop to a military school of artillery killed a cyclist on the road, the Bombay High Court overruled the military’s claim of sovereign immunity. The driver was found not to be engaged in the exercise of sovereign powers.

State of Bihar v. Khatri[11]

A significant concern was raised about the government’s responsibility for unlawful arrest and detention. “Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental rights to life and personal liberty?” Justice Bhagwati said, moving forward in the direction of a new dimension of the right to life and personal liberty. It’s worth noting that India’s government has yet to ratify a treaty that guarantees compensation for unlawful arrest and incarceration. This plainly demonstrates the government’s lack of regard for the people’s vital rights.

State of Bihar v. Rudal Shah[12]

The Supreme Court issued an important decision against the Bihar government for the unlawful and illegal imprisonment of Rudal Shah in Muzaffarpur jail for 14 years after he was acquitted by the Sessions Court in June 1968. Rudal Shah and his hapless family were awarded Rs 30,000 in compensation by the court for the injustice and harm they suffered.

Basava Kom Dyamgonde Patil v. State of Mysore [13]

Articles confiscated by the police were brought before a Magistrate, who ordered the Sub-Inspector to keep them secure and have them authenticated and appraised by a jeweller. The items were misplaced while being held in the police guard room. In a case involving the restoration of commodities, it was decided that if no prima facie defence could be shown, the court might compel the State to return the value of the item to the owner if no prima facie defence could be established.


There was no statute establishing the government’s responsibility for its subjects’ wrongdoings before to 1858. The decision to draught laws for this purpose is unquestionably superior. Because our country is sovereign, secular, and democratic, this act is necessary to safeguard all of the above-mentioned terms. Given the fact that the criteria had previously been subjected to different criticisms, the theory of constitutional tort is a revolutionary jurisprudence created by the courts. At the Apex Court, a scientific standard for future cases must be developed.

The state is only liable for the acts or omissions of statutory authorities when the statutory authority acts outside his legal authority while purporting to act pursuant to the legal authority conferred upon him, and the act or omission causes or results in damage to a person and is not covered by the statutory protection, if any, contained in such enactments. This rule was developed for the apparent reason because, as the Supreme Court has stated in the following decisions, a conduct done under a legislation and in conformity with the statute can never amount to tort.


[2] Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
(1861) 5 Bom. H.C.R. App. I,p.1

[3] Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
(1861) 5 Bom. H.C.R. App. I,p.1

[4] Nobin Chandra Dey v. Secretary of State for India (1876) ILR 1 Cal 12

[5] Secretary of State v. Hari Bhanji (1882) ILR 5 Mad 273

[6] State of Rajasthan v. Vidyawati 1962 AIR 933, 1962 SCR Supl. (2) 989

[7] Kasturi Lal v. State of U.P 1987 AIR 27, 1987 SCR (1) 86

[8] State of M.P. v. Chironji Lal AIR 1981 MP 65

[9] Satyawati Devi v. Union of India AIR 1967 Delhi 98, (1969) IILLJ 195 Del

[10] Union of India v. Sugrabai  A.I.R 1969 Bom 13.

[11] State of Bihar v. Khatri  1981 SCR (2) 408, 1981 SCC (1) 627

[12] State of Bihar v. Rudal Shah (1983) 4 SCC 141

[13] Basava Kom Dyamgonde Patil v. State of Mysore AIR 1977 SC 1749, 1977 CriLJ 1141, (1977) 4 SCC 358