Vicarious Liability of the State in India

Vicarious Liability of the State in India: From Sovereign Immunity to Constitutional Accountability

Introduction

The liability of the modern Indian State for the wrongs of its agents occupies a contested space at the intersection of public law, tort theory, and constitutionalism. While the doctrine originated in common-law notions that “the King can do no wrong,” Indian courts have progressively dismantled the absolute immunity that once shielded governmental entities, recognising instead a regime of vicarious liability attuned to fundamental rights and welfare-state obligations. This article traces that jurisprudential trajectory, critically evaluates the present doctrinal position, and identifies persisting ambiguities in light of recent case-law and constitutional provisions.

Historical Foundations

Early Common-Law Influence

The seminal Privy Council decision in Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India (1861) distinguished between sovereign and non-sovereign functions, imposing liability only for the latter.[1] The dichotomy persisted, informing Article 300 of the Constitution, which continued the pre-constitutional ability of the State to be “sued or sue.”[2]

Post-Independence Evolution

  • State of Rajasthan v. Vidyavati (1962) repudiated broad immunity, holding the State liable for a driver’s negligence when the activity was not uniquely sovereign.[3]
  • Kasturi Lal Ralia Ram Jain v. State of U.P. (1965) revived the defence, treating police seizure and custody of gold as sovereign, thereby denying compensation.[4]

The dialectic between Vidyavati and Kasturi Lal framed subsequent debates: should liability hinge on the nature of the function or on the impact on individual rights?

The Decline of the Sovereign–Non-Sovereign Dichotomy

Welfare-state expansion blurred classical boundaries as governmental activity permeated commercial, regulatory and social domains. The Supreme Court acknowledged the erosion of the dichotomy in N. Nagendra Rao & Co. v. State of A.P., observing that “no rational basis survives” for a strict separation except for core functions such as defence or the administration of justice.[5]

Constitutionalisation of State Liability

Article 21 and Public-Law Compensation

Beginning with Rudul Sah v. State of Bihar, the Court derived a power under Articles 32 and 226 to award monetary compensation for violations of the right to life and personal liberty.[6] This transformed liability from a mere private-law delict into a constitutional remedy—grounded in strict responsibility rather than traditional fault principles.

Custodial Violence and Strict Accountability

In Nilabati Behera v. State of Orissa, custodial death triggered exemplary compensation, the Court stressing that sovereign immunity “is not available where a fundamental right is infringed.”[7] The obligation to protect individuals in custody was treated as non-delegable, rendering the State strictly liable irrespective of personal wrongdoing of officers.

Extension to Sexual Violence and Non-Citizens

Chairman, Railway Board v. Chandrima Das applied public-law compensation to the gang-rape of a Bangladeshi national by railway employees on State premises, underscoring that Article 21 protects “persons,” not merely citizens.[8]

Vicarious Liability in Tort: Contemporary Parameters

Negligence in Statutory Functions

Nagendra Rao held the State liable for deterioration of seized goods under the Essential Commodities Act, declaring that statutory regulation of trade is not an exclusive sovereign function.[5] The ruling emphasised Article 300’s openness to suits absent legislative restriction and criticised Kasturi Lal as inconsistent with republican ideals.

Medical Negligence in Public Hospitals

In Achutrao Haribhau Khodwa v. State of Maharashtra and State of Haryana v. Santra, negligent sterilisation procedures in government hospitals generated State liability; the Court explicitly rejected sovereign immunity, aligning tort principles with the constitutional right to health.[9]

Police Brutality and Abuse of Power

Saheli v. Commissioner of Police imposed vicarious liability on the Delhi Administration for police assault leading to a child’s death, reinforcing the duty of supervisory authorities to prevent rights violations.[10]

Analytical Synthesis

Criteria for State Liability After 2000

  1. Nature of Function: Liability is presumed for non-sovereign or welfare activities; core sovereign acts (defence, foreign affairs, high-level policy) retain immunity, though scope is narrowing.
  2. Violation of Fundamental Rights: Where Article 21 or other basic rights are breached, compensation may be ordered in public law, independent of the sovereign/non-sovereign enquiry.
  3. Course of Employment: Under traditional tort principles, the servant’s liability is a prerequisite; once established, the master-State is generally answerable unless the act is ultra vires the employment and dissociated from State benefit.
  4. Statutory Exclusion: Parliament may legislate immunity or compensation schemes (e.g., the Armed Forces (Special Powers) Act), yet courts exercise strict scrutiny to ensure compliance with constitutional minima.

Public Law v. Private Law Remedies

The Indian model now straddles dual tracks:

  • Public law compensation – swift, summary, rights-centric, predicated on strict liability (e.g., Nilabati Behera); sovereign immunity unavailable.
  • Private tort actions – fault-based, evidentiary, where the sovereign-function defence may still be raised (e.g., residual application of Kasturi Lal).

The coexistence creates doctrinal tension, yet affords litigants strategic choice.

Unresolved Issues and Reform Proposals

  • Codification: Absence of an Indian equivalent to the UK Crown Proceedings Act, 1947 leaves courts to craft ad hoc principles, producing uncertainty.
  • Definition of Sovereign Functions: The category remains fluid; clarity could emanate from legislative enumeration or a principled test focused on democratic accountability rather than historical pedigree.
  • Quantum and Standardisation of Compensation: Divergent awards across jurisdictions invite the formulation of guidelines to promote parity.
  • Personal Liability of Officers: Current jurisprudence oscillates between exclusive State liability and concurrent personal liability; statutory indemnity frameworks are advisable.

Conclusion

Indian jurisprudence on vicarious liability evidences a decisive shift from colonial immunity towards a constitutional ethic of accountability. While pockets of sovereign protection linger, particularly for quintessential State functions, courts have deployed Articles 21, 32, and 226 to fashion robust remedies against State wrongs. The trajectory—anchored in cases such as Rudul Sah, Nilabati Behera, and Nagendra Rao—signals that governmental power is subordinate to the fundamental rights of individuals. Legislative codification, aligned with this constitutional vision, would consolidate the doctrinal gains and provide coherent guidance for future litigation.

Footnotes

  1. P&O Steam Navigation Co. v. Secretary of State for India (1861) 5 Bom HCR App 1.
  2. Constitution of India, Art. 300.
  3. State of Rajasthan v. Vidyavati, AIR 1962 SC 933.
  4. Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039.
  5. N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205.
  6. Rudul Sah v. State of Bihar, (1983) 4 SCC 141.
  7. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
  8. Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465.
  9. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634.
  10. Saheli v. Commissioner of Police, (1990) 1 SCC 422.