Vicarious Liability of the Government of India: Plea for Review

Introduction

The law relating to the vicarious liability of the Government in India has been criticised for being uncertain and inconsistent. While modern legal systems expect the State to compensate victims of wrongful acts committed by its servants, Indian law still recognises the defence of sovereign immunity in certain situations.

Many court decisions and legal scholars have argued that the present position is unsatisfactory. As the role of the State has expanded in a welfare society, there is a strong demand for reviewing and reforming this doctrine.

Meaning / Definition

Vicarious liability of the Government means the legal responsibility of the State for wrongful acts committed by its servants while performing their duties.

In India, the State may avoid liability if the wrongful act was committed while performing a sovereign function. However, if the act occurred during a non-sovereign function, the Government can be held liable like any private employer.

This rule mainly developed from the decision in Kasturi Lal v. State of Uttar Pradesh, though later decisions have weakened the authority of this case.

Modes or Types

Sovereign Functions

Sovereign functions are duties that can only be performed by the State through the authority of government power.

Examples include:

• Maintenance of defence forces
• Maintenance of law and order
• Administration of justice
• Governmental administration

In such cases, the State may claim immunity from liability.

Examples of sovereign functions include:

• Construction of military roads
• Distribution of meals to army personnel on duty
• Checking army personnel on duty
• Police action to control riots or unlawful gatherings

Non-Sovereign Functions

Non-sovereign functions are activities that could also be performed by private individuals or organisations.

Examples include:

• Running hospitals or welfare services
• Transport activities
• Construction or maintenance work
• Routine administrative tasks

If a tort occurs during these functions, the Government is generally liable.

Examples of non-sovereign functions include:

• Maintenance of dockyards
• Government vehicles transporting materials
• Famine relief work
• Transporting sick persons to hospitals
• Carrying military personnel during routine movement
• Training drivers or transporting equipment
• Providing services to consumers under the Consumer Protection Act

A simple test is: if a private person could perform the activity, it is likely a non-sovereign function.

Important Case Law

Kasturi Lal v. State of Uttar Pradesh

The Supreme Court held that the State was not liable for the loss of property seized by police because the act was performed during a sovereign function. This decision has been widely criticised for being unjust.

State of U.P. v. Hindustan Lever Ltd.

The court held that the Government can be liable when the act performed by its servants is not related to sovereign functions.

Common Cause v. Union of India

The Supreme Court observed that the doctrine of sovereign immunity has little relevance in modern times and that the authority of the Kasturi Lal decision has been weakened.

Lucknow Development Authority v. M.K. Gupta

The Supreme Court held that services provided by public authorities to consumers are not sovereign functions and the State can be held liable under consumer protection law.

Distinction / Comparison

Sovereign Function vs Non-Sovereign Function

Sovereign Function

• Can only be performed by the State
• Connected with government authority
• Includes defence, law enforcement and administration of justice
• State generally enjoys immunity

Non-Sovereign Function

• Can be performed by private individuals
• Includes welfare, commercial or routine activities
• State can be held liable for wrongful acts

Practical Example

A government hospital ambulance negligently causes an accident while transporting a patient.

Since running a hospital or ambulance service is an activity that private hospitals can also perform, it is considered a non-sovereign function, and the Government may be held liable for damages.

Summary

• The law on government liability in India is still uncertain and needs reform.
• The doctrine of sovereign immunity protects the State in certain cases.
• The State is generally not liable for torts committed during sovereign functions.
• The State can be liable for acts done in non-sovereign functions.
• The decision in Kasturi Lal v. State of U.P. has been criticised and weakened by later judgments.
• Courts have increasingly moved towards limiting sovereign immunity in modern welfare states.