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state of rajasthan v vidhyawati
Topics: Common law, Law, Supreme Court of the United States, Constitution, Tort, United States Constitution / Pages: 10 (2437 words) / Published: Sep 30th, 2013


State of Rajasthan vs. Vidhyawati and Kasturilal vs. State of U.P.


In this case, the appellant carried on the business in fertilizer and food grains. Huge stocks of food grains, fertilizers and other commodities were seized by police authorities. The appellant represented to the state authorities several times that fertilizer be sold otherwise it would become useless. No steps were taken by the authorities to do the needful. At last, the stocks seized were released as the appellant was found to be not guilty of any breach of law. But the appellant refused to take delivery of the stock because of deterioration in quality. He filed a suit to recover the price of the stock by the way of compensation. In this case the Supreme Court has held that when due to the negligent act of the officers of State a citizen suffers any damage the State will be liable to pay compensation and the principle of sovereign immunity of State will not absolve him from this liability. The court held that in the context of modern concept of sovereignty the doctrine of sovereign immunity stands diluted and the distinction between sovereign and non-sovereign functions no longer exists. The Court noted the dissatisfactory condition of the law in this regard and suggested for enacting appropriate legislation to remove the uncertainty in this area. The Supreme Court held that the State was liable vicariously for the negligence committed by its officers in discharge of public duty conferred on them under a statute. As regards the immunity of State on the ground of sovereign function, the Court held that the traditional concept of sovereignty has undergone a considerable change in the modern times and the line of distinction between sovereign and non-sovereign powers no longer survives. No civilized system can permit an executive as it is sovereign. The concept of public interest has changed with structural change in the society. No legal system can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without remedy. The need of the State to have extraordinary powers cannot be doubted. But it cannot be claimed that the claim of the common man be thrown out merely because the act was done by its officer even though it was against law and negligence. Need of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. In a welfare State, functions of the State are not only defense of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of the people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and unalienable functions of a constitutional Government, the State cannot claim any immunity. The Court observed that Sovereignty now vests in the people. The legislature, the executive and the judiciary have been created and constituted to serve the people.
The driver of a jeep owned and maintained by the State of Rajasthan for the official use of the Collector of a district, drove it rashly and negligently while bringing it back from the workshop after repairs and knocked down a pedestrian and fatally injured him. As a result of the injuries the pedestrian died. His widow sued the State of Rajasthan for damages. The Supreme Court held that the state was vicariously liable for the negligence of the driver and awarded damages. The accident took place while the driver was bringing it back from the workshop to the Collector's residence. It cannot be said that he was employed on a task which was based on delegation of sovereign or governmental powers of the state. His act was not an act in the exercise of a sovereign function. Referring to the P. &O. case, the Court derived the proposition that the government would be liable for damages occasioned by negligence of its servants if the negligence was such as would render an ordinary employer liable.
A person was taken into custody on suspicion of being in possession of stolen property. His property including certain quantity of gold and silver was taken from him and kept in the Malkhana till the disposal of the case. The gold and silver was misappropriated by a police constable who fled to Pakistan. The appellant sued the State of Uttar Pradesh for return of the gold and silver and as alternative claimed damages for loss caused by negligence of the Meerut police. The state contended that no liability would accrue for acts committed by a public servant where such acts were related to the exercise of sovereign power of the state. It was held by the Apex Court that the claim against the state could not be sustained despite the fact that the negligent act was committed by the employees during the course of their employment because the employment was of a category which could claim the special characteristic of a sovereign power. The court held that the tortious act of the police officers was committed by them in discharge of sovereign powers and the state was therefore not liable for the damages caused to the appellant.
Before the present Constitution came into force the East India Company and thereafter the Government of India Act, 1858 which transferred the Government of India from East Indian Company to the British Crown with its rights and liabilities, the Secretary of the State were liable, on behalf of the Crown for the tortious acts of their servants committed in the course of their employment. Section-65 of the Government of India Act, 1858 provided that the Secretary of the State could be sued as it could be done against the East India Company. Section-65 of the Government of India Act, 1858, was continued and we find it as Section-176 of the Government of India Act, 1935. In the present Constitution the corresponding provision is Article-300.
In 1962, the Supreme Court was for the first time since the constitution came into force called upon to consider the question of state liability for the tortious acts of the servants in State of Rajasthan vs. Vidhyawati. There could have been a possibility that the Vidhyawati case in course of time, might have been the precursor of the new trend in the area of state liability, but this process got arrested by the court’s subsequent pronouncement in the case of Kasturilal Ralia Ram Jain vs. State of Uttar Pradesh where the question of the state liability for tortuous act of its servant was once again considered. In Vidhyawati, the court held that the state was vicariously liable for the negligence of the driver and government would be liable for damages occasioned by negligence of its servant. If the negligence was such as would rendered an ordinary employer driver. But in this case of Kasturilal Supreme Court has taken a different view and held that government will not be liable for the acts of its servant for the tortious act in the course of his employment. The Supreme Court followed the rule laid down in P.S.O. Steam Navigation case by distinguishing Sovereign and non-Sovereign functions of the state and held that abuse of police power is a Sovereign act, therefore State is not liable In N. Nagendra Rao & Company V. State of A.P. in which the court held the State of Andhra Pradesh liable for the loss caused to the appellant by the negligent exercise of powers by the State officials under the Essential Commodities Act, 1655. The court observed that no civilized system could permit an executive to play with the people of a country and claim to be sovereign. To place the State above the law is unjust and unfair to the citizen. In the modern sense the distinction between sovereign and non-sovereign functions does not exist. The ratio of Kasturi Lal is available to those rare and limited cases where the statutory authority acts as a delegate of such functions for which it cannot be sued in a court of law.
In the light of above, it would be worth to mention the observation of Apex court in N.Nagendra Rao Company V. State of AP. The honorable court noted the recommendations of the Law Commission first Report for statutory recognizing the liability of the State as had been done in England through the Crown Proceedings Act, 1947 and in the USA through the Federal Torts Claims Act, 1946. It therefore, held that the doctrine of sovereign immunity has no relevance in the present day.
In retrospect one can say that non-enactment of a law defining the scope of tortious liability of the state has proved to be a blessing in disguise in long run. Had such a law been enacted, the law in the area would have been circumscribed within the narrow confines of the statutory provisions of the enacted law. Absence of legislation, on the other hand, gave an opportunity for the full play of judicial creativity and the Supreme Court has thus been able to transform the archaic law concerning tortious liability in to a very liberal law favoring the citizen vis-à-vis the state.
N. Nagendra Rao & Co. v State of A.P. was a judgment of gesture significance in the judicial history of India because it evaporated the Doctrine of Sovereign Immunity in this great Republican, Parliamentary and Welfare Democracy. The judgment in this case unambiguously shows the progression of the outlook of judiciary. In fact India has long felt the need of a comprehensive legislation like Indian Torts Act to democratize the area of sovereign immunity. The people of India have long being deprived of their rights with regard to the tortious liability of the State. The frame of mind of the State is required to understand the peripheral nature of the colonial doctrine which denied the legitimate rights of Indians. It further strengthens the foundation for a petition for Indian Torts Act. It is more urgently required in post constitutional era and it stands unobserved for over sixty years now in a pro bono publico state.
Article-300(1) of the Constitution of India enshrines that the Government of India may be sued in relation to its affairs subject to any law made by an Act of the Parliament. Thus, so long as the Parliament or the State Legislature does not enact a law on this the legal position in this respect is the same as existed before the commencement of the Constitution.
The law regarding the government’s tortious liability was extremely outmoded and antiquated and unjust to the people. The distinction between sovereign and non sovereign functions, which the supreme courts perpetuated through the Kasturilal ruling, was irrational in the modern context. In effect, the preposition that the state was exempted from the liability for a sovereign act amounted to applying the doctrine ‘act of state’ to the relationship between the state and the citizen, although, according to the theory of English law, there can be no ‘act of state’ between the state and its subjects.
In modern context, it is extremely difficult to distinguish between sovereign and non sovereign functions. For example, it could plausibly be argued, on the facts of Vidhyawati case, that administration, and, accordingly, maintenance of transport form an administrative officer is a sovereign function. On the other hand, on the facts of the Kasturilal case, it could be argued that keeping of gold in the malkhana amounted to bailment – an activity that could be taken by private person as well.
Gradually the distinction between sovereign and non-sovereign functions has been removed .It would be evident from the Nagendra Rao and other case law on the subject, that definiteness of the precise contours and certainty of principles of universal application are lacking. While holding that the distinction between sovereign powers and non-sovereign powers has become academic in the present day Welfare State, the court in Nagendra Rao again affirms and accepts the theory of “primary and inalienable functions”. One can understand the difficulty faced by the Bench in Nagendra Rao’s case. It was a Bench of two judges, whereas Kasturi Lal’s case was decided by a Constitution Bench of five judges. And of course, Vidyawati was also decided by a Constitution Bench of five judges.
In wrapping up the peculiarity between sovereign and non-sovereign functions has almost been obliterated by the Supreme Court through the elucidation of law in the light of interests of the jurisprudence. In a welfare state like India there has been an imperative need of the codification of the law of torts. The project of codification of law of torts in the form of long awaited Indian Torts Act is required to be taken up without any further hindrance. The draft bill of Indian Torts Act which was made in pre constitutional era by the British themselves, but not passed by them should be taken up again and be passed in the light of contemporary times as per the requirement of resurgent nation. The State in post constitutional era is a welfare state created by the instrumentality of the Constitution of India within the framework of republican parliamentary democracy. The legal person known as State is equally accountable in the Constitution of India as a natural person. There is supremacy of the Constitution and not of the State. Sovereignty lies with the people of India and not with Sovereign or the State. So the State is equally accountable towards the people of India.
Indian constitutional law, 6th edition, Prof. M.P. Jain

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