UNDERSTANDING STATE’S VICARIOUS LIABILITY IN TORT LAW UNDERSTANDING STATE’S VICARIOUS LIABILITY IN TORT LAW UNDERSTANDING STATE’S VICARIOUS LIABILITY IN TORT LAW 

This article is written by Ritu Raj of S.S Khanna Girls Degree College (University of Allahabad), an intern under Legal Vidhiya

INTRODUCTION 

One of the countries from which we derived the source of the constitution is the United Kingdom. In the United Kingdom, the maxim ‘Res Non-Potest Peccare’ which means ‘the king can do no wrong’. It means that despite A.V Dicey’s Concept of Rule of Law ; his own country’s principles were against the rules given by him. This was followed in earlier times. 

In India, this principle was never accepted. The Government of India Act, 1858 provides rights to people to sir the government under Article 65 and the same was provided in Article 35 of the Government of India Act, 1915 and Article 176 of the Government of India Act, 1935. 

It means that even before the formation of the constitution, the nation believes in Equality before law which is the second principle of Rule of law. 

At present, when the country is independent, democratic and republic; it provides equal rights and equal positions before law. Article 300 of the Constitution of India,1950 states that the ‘Union of India or Government of India’ can sue or be sued like any ordinary person.

MEANING OF VICARIOUS LIABILITY OF STATE 

The rule of ‘Vicarious Liability’ is an exception to the general rule of liability. According to general rule, anyone can be made liable only for his own wrongful or negligent act. But, according to the exception rule, anyone can be liable not only for his own mistake but also for acts done by others. It is also known as ‘No fault liability’. 

PRINCIPLE OF VICARIOUS LIABILITY 

The concept of Vicarious Liability is based on two principle, which are mentioned below:- 

1. Qui facit per alium facit per se :- It literally means that ‘one who does act through another deemed in law to do himself’. In simple terms it means that if someone does an act through another, law will deem that person is doing the act himself.
2. Respondent Superior:-  It means that someone who has a big pocket should be made liable to compensate others. It literally means that ‘Principal be liable for the acts of subordinate’. 

Will the State be held accountable for all its actions?

The answer is no because it will be biased against the State and the ordinary people will not perform their duty with due diligence as having a very little liability. 

CASE:- PENINSULAR AND ORIENTAL STEAM NAVIGATION COMPANY V. SECRETARY OF STATE FOR INDIA

FACTS:- The provision included in this case was Section 65 of the Government of India Act, 1858. A servant of the said company was proceeding on a highway and met with an accident due to negligence by the servants of the government. 

JUDGMENT:- The Hon’ble Court held that a master is liable for tort committed by servant in the ordinary course of business. Therefore, the company was entitled to get compensation from the government.

In this case , a distinction was made between sovereign and non- sovereign function of the government.

Sovereign functions include those actions for which the government is not responsible as well as answerable in any court of law such as Defence of the country, maintaining the armed forces,etc. While, Non – Sovereign function include those actions for which the government is answerable to court of law. Generally these kinds of acts are done by any private entity without the delegation of power by the government such as Schools, Hospitals, Trade,etc. 

CASE LAWS:-

From here onwards we will deal with important cases on vicarious liability of the state.

• State of Rajasthan v. Vidyawati :- In this case , a driver who was negligent in driving a vehicle killed another person. The widow filed a suit against an employee who was working under the state. The state claimed that they were doing duty and it would be considered as a sovereign duty. But, the hon’ble court held that the widow is entitled to get compensation from the state as an employee of State was doing a non – sovereign function and the government was exempted from immunity.
• Kasturilal Ralia Ram v. State of Uttar Pradesh :- This case is very famous for vicarious liability of the state. In this case, police arrested Kasturilal and confiscated his gold and silver. When kasturilal was proven innocent, then he demanded his gold too but the constable with that gold abscond. Then, he filed a suit against the state , but the court held that the state is not liable because the act was part of its sovereign function. 

This case was wrongly decided and therefore bypassed.

• Saheli v Commissioner of Police :- In this case, Saheli was a Non Governmental Organisation (NGO) who filed a suit against police because they have done assault against women. The Hon’ble Court held that the plaintiff is entitled to get compensation and get an amount of 75,000 because the assault done by police was against the provision of Article 21. 
• Rudal Shah v State of Bihar :- The facts of the case were such that plaintiff,  Rudal Shah was arrested in the year 1953 but was acquitted by the hon’ble judge. After the order of acquittal , he remained in jail for 14 years due to which a public interest litigation was filed in the year 1982. The Hon’ble Court held that the action of police was violative of Article 21 as it was hindering petitioner right to life and personal liberty and therefore made liable to compensate the petitioner.

The above two were examples where the decision given in the case of Kasturilal was bypassed.

• Roopram v State of Punjab :- The facts of the case were such that a motorcyclist who was here petitioner got injured by the vehicle, carrying goods for the construction of a bridge which was driven by a government employee. Despite the fact that construction of the bridge was a sovereign function, the state was held liable for compensation as carrying material to site was not sovereign gold. 

CONCLUSION 

The evolution of the concept of ‘Vicarious Liability’ in India is an example that we belong to a nation who follows the doctrine of ‘Rule of Law’ not only theoretically but also practically. This principle is an epitome that even in the practical world too, law is superior and not any state or ruler. What matters is the rights of people and the priority that is justice which should be given to all. 

REFERENCES 

1. https://lawbhoomi.com 
2. https://www.drishtijudiciary.com
3. https://www.lawctopus.com
4. https://student.manupatra.com
5. https://www.ijlmh.com

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