Authored By: Asmit Kumar
Lloyd Law College
Introduction
Imagine this: Police seize your valuables during an investigation, but due to negligence, they go missing forever. Can you sue the government for compensation? Or, a government jeep driven by a state employee knocks down a pedestrian should the State be held vicariously liable like any private employer?
These scenarios lie at the heart of sovereign functions in tort law. In India, the State’s liability for torts civil wrongs causing harm committed by its servants is governed by Article 300 of the Indian Constitution. This provision permits the Union and the States to sue and be sued in their respective names, yet it leaves the substantive principles of liability to judicial interpretation rooted in common law.
The doctrine of sovereign immunity, inherited from English feudal principles that “the King can do no wrong,” historically shielded the State when its servants acted in the exercise of sovereign (or governmental) functions such as maintaining law and order or defence. In contrast, non-sovereign (or commercial) functions attracted ordinary principles of vicarious liability. This binary distinction, while providing a seemingly clear test, has generated significant uncertainty and inconsistency in Indian jurisprudence.
This article argues that the traditional sovereign-non-sovereign distinction under Article 300 has become anachronistic in a modern welfare State committed to constitutional values of justice, equality, and accountability. While judicial decisions have progressively narrowed immunity particularly through the development of constitutional torts the absence of comprehensive legislation perpetuates arbitrary outcomes and undermines public trust. The article proceeds as follows. Section II outlines the existing constitutional and common law framework. Section III analyses the landmark judicial decisions that have shaped the doctrine. Section IV critically evaluates the limitations of the current approach. Section V examines comparative perspectives from the United Kingdom and the United States. Section VI concludes with recommendations for legislative reform.
The Existing Legal Framework
The doctrine of State liability in tort in India rests on a combination of constitutional text and common law principles. Article 300(1) of the Constitution provides: “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…” A similar provision exists for States under Article 300(2). This article merely establishes the procedural capacity of the State to be sued; it does not define the extent of substantive liability.
In the absence of a dedicated statute governing State tort liability, courts have drawn upon English common law as it stood at the time of the Constitution’s commencement. Under pre 1947 English law, the Crown enjoyed broad immunity for torts committed by its servants in the performance of governmental functions. This immunity stemmed from the maxim that the King could do no wrong and the procedural difficulty that the Crown could not be sued in its own courts without consent.
The position changed in England with the Crown Proceedings Act 1947, which largely abolished Crown immunity and placed the Crown on the same footing as a private litigant, subject to specific exceptions. India, however, did not enact analogous legislation. Consequently, the scope of State immunity continued to be determined by judicial interpretation of the sovereign-non-sovereign dichotomy first articulated in colonial jurisprudence.
The distinction operates as follows: when a public servant acts in the exercise of a sovereign function an inalienable governmental power that a private individual cannot perform the State is traditionally immune from vicarious liability. Examples include police powers of arrest, seizure, or maintenance of public order. Conversely, when the State engages in non-sovereign activities akin to those of a private person such as operating transport services, running hospitals, or entering commercial contracts ordinary tort principles of respondeat superior apply, rendering the State vicariously liable for the negligence of its servants.
This framework, while rooted in Article 300, is supplemented by Article 300A (right to property) and the fundamental rights regime under Part III, which have enabled the evolution of public law remedies independent of private tort claims.
III. The Judicial Interpretation: Landmark Cases
The judicial journey began with the foundational colonial decision in Peninsular & Oriental Steam Navigation Co. v. Secretary of State for India in Council (1861). In this case, the Calcutta High Court (reported as 5 Bom HCR 1) drew the first clear line between sovereign and non sovereign functions. The court held that the East India Company (acting on behalf of the Crown) was not liable for damage caused by negligent acts performed in the exercise of sovereign power, but could be held liable for acts that could equally be performed by a private individual. This judgment established the functional test that has guided Indian courts for over a century.
Post-independence, the Supreme Court signalled a shift towards greater accountability in State of Rajasthan v. Vidyawati AIR 1962 SC 933. A government jeep, driven by a State employee on official duty but not in the exercise of any sovereign power, caused a fatal accident. The Court rejected the State’s plea of immunity, emphasizing that India had become a welfare State engaged in numerous activities indistinguishable from private enterprise. Chief Justice Gajendragadkar observed that feudal notions of Crown immunity were inconsistent with the constitutional ethos.
The high-water mark of immunity came in Kasturilal Ralia Ram Jain v. State of Uttar Pradesh AIR 1965 SC 1039. Police seized gold from the petitioner during an investigation; a constable negligently allowed its theft from the malkhana. The Supreme Court, relying on the P&O precedent, held the State immune because the act of seizure was a sovereign police function. The judgment distinguished Vidyawati on the ground that the jeep accident involved a non sovereign act. Kasturilal has since been criticised for producing manifestly unjust results and for adopting an overly rigid classification.
Subsequent decisions have steadily eroded the immunity. In N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994) 6 SCC 205, the Supreme Court held the State liable for the deterioration of seized fertilizers due to negligent storage. The Court clarified that sovereign immunity is confined to “primary and inalienable” functions and must be narrowly construed in a welfare State. Similarly, Nilabati Behera v. State of Orissa (1993) 2 SCC 746 pioneered the concept of constitutional torts. Awarding compensation under Article 32 for custodial death, the Court held that sovereign immunity has no application to violations of fundamental rights, particularly Article 21. This public law remedy operates independently of private tort claims under Article 300.
Later cases such as Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465 further reinforced accountability by holding the Railways liable for a rape committed by employees, treating the operation of railways as a non-sovereign commercial activity. The judicial trend thus reflects a pragmatic narrowing of immunity while preserving the formal distinction.
Critical Analysis: Limitations of the Current Approach
The sovereign-non-sovereign dichotomy, though historically useful, suffers from several structural deficiencies. First, the classification is inherently subjective and leads to arbitrary outcomes. The same police force may be immune when seizing goods (Kasturilal) but liable when operating a police vehicle in a non-investigative capacity. This creates uncertainty for litigants and undermines the rule of law.
Second, the distinction is anachronistic in a welfare State. The Constitution envisions the State as an active participant in socio-economic development running hospitals, transport corporations, and public utilities. Treating such activities as non-sovereign while immunising core governmental functions ignores the reality that negligence in any State activity can cause equal harm.
Third, the doctrine fails to account for the rise of constitutional torts. Cases like Nilabati Behera and Rudul Sah v. State of Bihar (1983) 4 SCC 141 demonstrate that fundamental rights violations attract strict liability for compensation irrespective of sovereign character. This parallel jurisprudence has effectively bypassed Article 300 in rights-sensitive cases, rendering the traditional tort framework marginal in practice.
It is submitted that these limitations produce injustice: victims of State negligence in “sovereign” spheres are left remediless under private law, while public funds remain exposed in non-sovereign spheres without clear legislative safeguards. The absence of a comprehensive Government Liability in Tort Act exacerbates the problem, leaving reform to incremental judicial creativity rather than systematic legislative design.
Comparative Perspectives
Comparative analysis reveals more coherent models. The United Kingdom’s Crown Proceedings Act 1947 abolished most forms of Crown immunity, subjecting the Crown to tort liability on the same basis as a private person, subject to exceptions for discretionary policy decisions and combatant activities. This statutory framework provides clarity and predictability.
In the United States, the Federal Tort Claims Act 1946 waives sovereign immunity for tort claims against the federal government but retains exceptions under the discretionary function doctrine (28 U.S.C. § 2680(a)). Courts distinguish operational negligence (actionable) from policy-level decisions (immune). This nuanced approach balances accountability with the need to protect essential governmental discretion.
Both jurisdictions demonstrate that legislative intervention can replace vague common law distinctions with clear, principled exceptions. India’s continued reliance on judge-made law stands in contrast and highlights the need for similar statutory reform.
Conclusion
This article has demonstrated that the sovereign-non-sovereign distinction under Article 300, while historically rooted in colonial jurisprudence, has become increasingly inadequate in addressing State tort liability in contemporary India. Landmark cases from P&O to Nagendra Rao and Nilabati Behera illustrate a judicial effort to narrow immunity, yet the formal dichotomy persists and continues to generate arbitrary results.
It is submitted that the current framework fails to align with the constitutional vision of a welfare State accountable to its citizens. Legislative reform is imperative. Parliament should enact a comprehensive Government Liability in Tort Act that abolishes the blanket sovereign immunity rule, introduces a general principle of State liability subject to narrowly defined exceptions (such as core policy decisions and combatant activities), and codifies procedural safeguards for public funds. Such legislation would complement the existing constitutional tort jurisprudence and enhance public confidence in the administration of justice.
The injured citizen whose valuables disappear from police custody or who is harmed by a State vehicle deserves a predictable and just remedy. Ensuring that the law provides one clearly, fairly, and consistently is the central challenge of State tort liability in twenty-first century India.
Reference(S):
Cases
Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465.
Kasturilal Ralia Ram Jain v. State of Uttar Pradesh AIR 1965 SC 1039. N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994) 6 SCC 205. Nilabati Behera v. State of Orissa (1993) 2 SCC 746.
Peninsular & Oriental Steam Navigation Co. v. Secretary of State for India in Council (1861) 5 Bom HCR 1 (Cal).
Rudul Sah v. State of Bihar (1983) 4 SCC 141.
State of Rajasthan v. Vidyawati AIR 1962 SC 933.
Legislation
Constitution of India 1950, arts 300, 32, 226.
Crown Proceedings Act 1947 (UK).
Federal Tort Claims Act 1946 (US).
Secondary Sources
D.D. Basu, Commentary on the Constitution of India (10th edn, LexisNexis 2022). M.P. Jain & S.N. Jain, Principles of Administrative Law (8th edn, LexisNexis 2021). P.M. Bakshi, The Constitution of India (16th edn, Universal Law Publishing 2023).
