Module 5

I. Elucidate the concept of 'Tortious Liability of the State' with the

help of relevant judicial decisions. – 10 Marks/ 15 Marks
Tortious liability is the legal responsibility of the State for any damage or harm caused to
persons or their property because of wrongful omissions or acts. The word tort is derived
from the Latin word ‘Tortum’ which means ‘to twist’.
According to Salmond, “A tort is a civil wrong for which the remedy is an action for
unliquidated damages and which is not exclusively the breach of a contract, or the breach of a
trust, or the breach of other merely equitable obligation.”
The concept of state tort liability has evolved over time. Traditionally, the state enjoyed
sovereign immunity, which shielded it from civil suits. However, as societies developed and
notions of accountability and justice advanced, exceptions to sovereign immunity were
introduced, allowing citizens to hold the state accountable for certain wrongful acts.
Tortious liability of the state refers to the legal responsibility of the government or state
entities for civil wrongs, or torts, committed by their agents or representatives. This liability
allows individuals to seek compensation when they suffer harm, injury, or property damage
due to the negligent or intentional actions of the state or its employees.
Historically, India adhered to the doctrine of sovereign immunity, but this has been
significantly modified. The government can be sued for its actions in areas where it has
expressly waived immunity, such as contract disputes or certain tortious claims.
Tortious liability of the administration is dealt in Article 300 of the Indian Constitution. It
states that the Union of India and the State Governments can sue or be sued in their
respective names, i.e., "Union of India" and the name of the respective State. The way they
can sue or be sued is similar to how it was before the Constitution came into effect, unless a
new law is made by the Parliament or State Legislature to change it.
Further it helps to continue court cases that were already going on when the Constitution
started in 1950. If a case involved the Dominion of India (which existed before the Union of
India), the Union of India automatically takes its place. Similarly, if a Province or Indian
princely state was involved in a case, the new State government takes its place. This was
done to make sure that legal matters didn’t get interrupted just because the government
system changed.
Types of Tortious Liability
Tortious liability encompasses a variety of civil wrongs, or torts, for which an individual or
entity can be held legally responsible. Here are some common types of tortious liability of
state
1. Negligence:
The state can be held liable for negligence when its actions or inactions fall below the
standard of care, resulting in harm to individuals or property.
Example: Failure to maintain public infrastructure leading to accidents.
2. Nuisance:
State activities that cause unreasonable interference with an individual’s use and enjoyment
of their property may lead to liability for nuisance.
Example: Government construction projects causing excessive noise or pollution.
3. Defamation:
The state can be held liable for making false statements that harm the reputation of
individuals or entities.
Example: Government officials making false statements about a private citizen.
4. Assault and Battery:
Definition: Liability may arise if state employees engage in intentional harmful actions, such
as assault or battery.
The Nilabati Behera v. State of Orissa case is a landmark judgment in Indian legal history
that addressed issues related to custodial deaths and the liability of the state for violations of
fundamental rights. The case gained significance for establishing the right to compensation
for victims of custodial violence or their legal heirs.
he primary legal issue in this case was whether the state could be held liable for the custodial
death of an individual. Nilabati Behera argued that her son’s fundamental rights under
Articles 21 and 22 of the Constitution were violated, and sought compensation from the state
for its failure to protect those rights.
The court held that the state is vicariously liable for the actions of its employees, including
the police. It stated that custodial violence is a serious violation of human rights, and the state
cannot plead sovereign immunity for such actions.
5. False Imprisonment:
The state may be liable for wrongfully restraining the freedom of an individual.
Example: Unlawful arrest or detention by government agents.
6. Breach of Statutory Duty:
Liability may arise when the state breaches a duty imposed by statute, leading to harm.
Example: Failure to comply with safety regulations, resulting in injuries.
7. Environmental Tort:
Definition: Liability for harm caused by the state’s actions that result in environmental
pollution or degradation.
M.C. Mehta v. Union of India is a landmark case in Indian environmental law that played a
crucial role in shaping the legal framework for environmental protection. The case involved
issues related to the operation of industries in and around the Taj Trapezium Zone, an
ecologically sensitive area near the Taj Mahal in Agra.
The primary legal issues in the case included the protection of the environment and the
cultural heritage of the Taj Mahal. M.C. Mehta argued that the operation of industries within
the TTZ was leading to air pollution and posed a threat to the preservation of the monument.
The court emphasized the application of the public trust doctrine, asserting that natural
resources, including the environment, are held in trust by the state for the benefit of the
public, and the state is obligated to protect these resources.

II. Government's Contractual liability – 5 Marks

Section 2(h) of the Indian Contract Act, 1872 defines a contract as “An agreement
enforceable by law”. The word ‘agreement’ has been defined in Section 2(e) of the Act as
‘every promise and every set of promises, forming consideration for each other’.
When the central government or any state government is a party to any contract, it is known
as a government contract.
Article 299 of Indian Constitution deals with Contractual Liability of Governments. It lays
down certain conditions which the contracts made under the exercise of the executive power
of the centre or a state must fulfil to be valid: These conditions are as follows:
i. Written contract
A contract made under Article 299 of the Constitution must be a written contract. The words
'expressed to be made' and 'executed' clearly state that the contract must be in writing and not
an oral agreement. This is a requirement of law that must be fulfilled.
ii. Execution by an authorised person
The next requirement under Article 299 of the Constitution is that a government contract can
be entered into on behalf of the Government by a person authorised for that purpose by the
President or the Governor, as the case may be. If the contract was entered by any person not
authorised by the President or the Governor then such contract would not be valid.
iii. Expression in the name of the President or the Governor
The last essential condition is that a government must be expressed in the name of the
President or the Governor as the case may be. Even though the contract is entered into by an
officer authorised for such purpose, the contract would not be valid or enforceable against the
government if it is not expressed to be made on behalf of the President or the Governor.

The Supreme Court, in K.P. Chowdhary v. State of Madhya Pradesh, observed that in view of
Article 299(1) there cannot exist an implied contract between the Government and another
person. The Court also ruled that ‘if the contract between the Government and another person
is not in full compliance with Article 299(1), it would be no contract at all and will be
unenforceable either by the Government or other person as a contract.
The judicial attitude to Article 299 has sought to balance two objectives:
(1) on one hand, the need to protect the Government from unauthorised contracts; and
(2) at the same time, to safeguard the interest of unwary parties who enter into contracts with
government officials while no formalities laid down in the Constitution are fulfilled.

III. Write a detailed note on the Privileges and Immunitics of

Government in Legal Procecding under Admirtistrative Law –
10 Marks
Privileges and immunities of government refer to special rights and immunities that are
necessary to protect legislature and members from undue influence and to carry out
effectively their functions of inquiring, debating, and legislating. It is otherwise called
parliamentary privileges. These privileges enable the legislature to discharge its function
effectively, fearlessly, and without any outside interference.
There are these privileges and immunities enjoyed by the government: -
1. Civil Procedure Law of 1908 Privileges and Immunities:
According to Section 80 (1), no lawsuit may be brought against the Government or a public
official for any act that is allegedly performed in that person’s official capacity until two
months have passed after written notice has been given in accordance with the section’s
instructions. The clause is required and does not allow for any exceptions. As a result, giving
notice is required. It should be noted that the duty of notice is optional if a public officer acts
without authority. Its goal seems to be to give the government or the public official a chance
to think about their legal options and resolve the dispute out of court.
2. Privileges under the - Bhartiya Sakshya Adhiniyam, 2023
Section 129 states that only with the approval of the officer at the Head may anyone present
any evidence acquired from unpublished official records relating to any matter of State. The
only documents that fall within this category are those that deal with state matters and whose
publication would harm the general welfare. The document must be related to matters of the
state, and its publication must be contrary to the interests of the State or the general good.
The section’s foundation is the idea that releasing the document in question would be
detrimental to the public interest. And that where there is a conflict between the public
interest and the private interest, the public interest must prevail.
In accordance with Section 162, a witness who is asked to produce a document must do so
without regard to any objections to its production or to its admissibility if the document is in
his custody or under his control. The Court will determine whether any such objections are
justified.
3. Immunity from Estoppel-
A party is prohibited from disputing the existence of certain facts that he had previously
asserted and that the opposing party has relied upon or is permitted to rely upon under the
doctrine of estoppel. The idea of promissory estoppel was developed by courts in accordance
with the equity principle to prevent unfairness.
This principle holds true even in cases involving the government's public or executive
functions. It serves as a safeguard against fraud or clear injustice. However, this doctrine has
its limitations. It cannot be used to force the government to fulfill a promise that goes against
the law or exceeds authority of the government official. Additionally, estoppel cannot be used
against a minor οr against statutes. It's essential to note that estoppel cannot be applied if the
representation of statement of facts is contrary to the law, but it may be applicable in cases of
irregular actions
4. Immunity from Promissory Estoppel
The concept of Promissory Estoppel is frequently employed to hold the Government
accountable for its commitments and prevent it from retracting promises it has made.
According to this doctrine, if someone makes a promise or assurance either verbally or
through actions, and another person acts on that promise to their detriment, the promisor
cannot later deny or deviate from that promise.
However, there are specific circumstanceshere the doctrine of Promissory Estoppel does not
apply:
i. Public Interest: - The doctrine must give way to considerations of public interest.
If the larger public interest necessitates it, the doctrine may not be enforced. Mere
assertions that honor the promise would harm public interest are not enough. The
Government must present compelling reasons to the court, which will decide if
these reasons are substantial enough exempt the Government from liability.
ii. Contrary to Law: The doctrine cannot be used to compel the Government or any
public authority to fulfill a promise that violates existing laws.
iii. Exceeding Authority: If the promise or representation made by a government
official is beyond their jurisdiction or authority, the State cannot be held
accountable for it under th principle of Promissory Estoppel.
iv. Fraud: - Promissory Estoppel does not apply if the promise from the Government
is obtained through fraudulent means.
v. Constitutional Fraud – The doctrine is not applicable if the promise or
representation is acquired to deceive the constitution and enforcing it would
undermine constitutional objectives.

5. Immunity from Statute Operation

In England, the Crown is not bound by a statute unless it is expressly mentioned or
necessarily implied, based on the principle "the King can do no wrong." This approach was
followed in India until 1967. However, in present-day India, the Government is generally
bound by laws unless it is clearly exempted, either through express words or necessary
implication. When an express exemption exists, the law’s applicability is clear. Challenges
arise when exemption is claimed through necessary implication, especially in criminal laws.
If a statute imposes criminal liability or imprisonment, it is usually presumed that the law
does not apply to the State by necessary implication. Thus, the State is bound by statutes
unless clearly excluded.
IV. Discuss in brief the Sovereign and Non Sovereign Functions of
State with the help of appropriate judicial decisions. – 10 Marks
The functions of a state are broadly categorized into sovereign and non-sovereign functions.
This classification is significant in determining the liability of the state for actions
performed by its agents. While sovereign functions are traditionally immune from legal
action, non-sovereign functions can attract liability.

Sovereign Functions of the State

Sovereign functions are activities that are essential to the core functioning of the government
and cannot be delegated to private individuals. The State is generally immune from legal
liability when performing these duties, as they involve the exercise of governmental
authority.
1. Defence and Military Operations
These include the maintenance of armed forces, conducting warfare, and managing military
installations. Such actions are vital for national security and are carried out under the
exclusive authority of the government.
Union of India v. Harbans Singh
In this case, a military truck carrying food for soldiers caused a fatal accident due to negligent
driving. The family of the deceased sought compensation from the government. However, the
court held that since the act was done during the course of a sovereign function—military
operations—the State could not be held liable. This ruling reaffirmed that actions taken in the
discharge of sovereign duties enjoy immunity.
2. Maintenance of Law and Order
This covers police operations, riot control, arrests, and detention. These duties involve the
coercive powers of the State and are crucial for protecting public safety and preventing chaos.
Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh
The plaintiff's gold was seized by the police and later misappropriated by a police officer. He
filed a suit for compensation, alleging negligence and misuse of power. The Supreme Court
held that the act was performed as part of the police's sovereign duty, and thus the State was
not liable. This case firmly established the State’s immunity for wrongful acts committed
during sovereign functions.
3. Legislative Functions
The State performs law-making through its legislature, and this process includes debates,
drafting, and enactment of statutes. Errors or harm resulting from legislation are not grounds
for liability. The immunity ensures that the legislature can function independently without
fear of litigation hampering the enactment process.
4. Administration of Justice
This refers to the judiciary’s role in hearing cases, delivering judgments, and enforcing legal
rights. Judges and courts operate under the constitutional framework, and their actions are
protected. Even if a judgment causes harm, it is part of the judicial duty and cannot be
challenged in tort unless there is malice or gross misconduct.
5. Foreign Affairs and Diplomacy
Negotiations with other countries, representation at international forums, and execution of
treaties fall under this head. These functions help maintain India’s international presence and
protect its foreign interests. Such, matters are deeply political and confidential, and judicial
intervention is usually minimal.
6. Taxation and Revenue Collection
The assessment, imposition, and collection of taxes are critical for generating funds for public
welfare. Even if the taxpayer suffers due to procedural lapses, courts generally treat this as a
sovereign function and do not hold the State accountable unless rights are blatantly violated.

Non-Sovereign Functions of the State

Non-sovereign functions are welfare and commercial activities undertaken by the State that
can also be performed by private individuals or entities. In these cases, the State does not
enjoy immunity and may be held liable for any negligence or misconduct.
1. Commercial Activities
These include activities like running government-owned businesses, manufacturing units, or
selling goods. When the State enters the market as a seller or buyer, it does not act as a
sovereign authority.
Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India
An employee of the government negligently dropped an iron bar while working at a
dockyard, injuring a servant of the plaintiff company. The company sued for damages, and
the court allowed the claim. It ruled that since dockyard maintenance was a commercial
activity, not a sovereign function, the State was liable for negligence. This was one of the
earliest Indian cases distinguishing sovereign and non-sovereign functions.
2. Provision of Public Utilities
This includes the supply of electricity, water, sanitation, and public transportation. These
services directly affect citizens’ daily lives and are meant for public convenience.
State of Rajasthan v. Vidyawati
A jeep owned by the State and used by a government official caused an accident due to the
negligence of the driver. The victim’s family sued the government for compensation. The
Supreme Court held that operating and maintaining vehicles was a non-sovereign,
administrative function, and the State was therefore liable. The ruling was significant for
promoting accountability of the State in non-sovereign acts.
3. Educational and Healthcare Services
Running government schools, colleges, and hospitals falls under this category. These are
social welfare activities that aim to ensure access to basic needs for all citizens. If a patient
dies due to medical negligence in a government hospital, the State can be sued just like any
private healthcare provider.
4. Infrastructure Development
This includes building and maintaining roads, bridges, parks, and government buildings.
Though done for public benefit, these are not exclusive to the government and can be
outsourced. Poor maintenance or defective construction can lead to accidents, and the
government can be held liable for such negligence.
5. Transport Services
Running buses, trains, and other public transport systems are treated as commercial
undertakings by the government. If an accident occurs due to poor vehicle maintenance or
driver error, the State is liable, as this does not involve sovereign authority.