vicarious liability of state : all you need to know

Vicarious Liability refers to a situation where someone is held responsible for the actions or omissions of another person. in the field of torts, it is considered to be an exception to the general rule that a person is liable for his own acts only. It is based on the principle of qui facit per se per alium facit per se, which means, “He who does an act through another is deemed in law to do it himself”. In this paper, the author attempts to highlight the concept of vicarious liability of state in Indian context through various case laws.


Vicarious Liability refers to situations in which one person is held liable for the actions of another. In a case of vicarious liability, both the person who orders the conduct and the person who performs it are held accountable. As a result, employers are held vicariously accountable for the torts committed by their employees while on the job. The following are some common examples of such a liability:
(1) The principal is liable for the torts committed by his agent.
(2) Partners’ liability for each other’s tort.
(3) The master’s liability for his servant’s wrongdoing.
(4) The government’s or the administration’s liability.


The following are the components of vicarious liability:
(1) There must be a relationship of some type.
(2) The incorrect behaviour must be somehow connected to the relationship.
(3) The error occurred during the course of employment.

The term “administration” is used interchangeably with “state” or “government” in this context. The extent to which the administration is accountable for the torts committed by its employees is a difficult question to answer, especially in emerging countries with ever-expanding governmental activity. The principles of public law inherited from British common law, as well as the rules of the constitution, govern the government’s tort liability. The entire concept of the state’s vicariously liable for the torts committed by its agents is based on three principles:
• superior respondeat (let the principal be liable).
• quifacit through alium facit per se (he who acts through another does it for himself.


Vicarious liability is a type of strict, secondary liability that arises from the common law doctrine of agency respondeat superior, which holds that the superior is responsible for the actions of their subordinate, or, in a broader sense, any third party who had the “right, ability, or duty to control” the violator’s actions. The tortfeasor is not held liable; rather, someone who is supposed to have control over the tortfeasor is held liable.
The liability deriving from a ‘Master – Servant’ connection is the most typical type of vicarious liability we encounter. This is known as the “RESPONDEAT SUPERIOR” concept, which states that the MASTER – the archaic phrase for an employer – is responsible for the torts committed by its SERVANTS – the archaic term for employees. A master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment, according to this principle.
When a servant commits a tort while on the job, the master is frequently guilty of “Culpa in eligendo” or “Culpa in inspiciendo,” as German lawyers phrase it. To apply the doctrine of vicarious culpability, the following elements must be met: first, there must be a master-servant connection between the defendant and the person who committed the wrong complained of. Second, the servant must have been acting in the course of his employment when he committed the wrong.


The maxim in English Common Law was “The King can do no wrong,” hence the King was not accountable for the wrongdoings of his subordinates. The Crown Proceedings Act of 1947, however, transformed the position of the ancient Common law maxim in England. Previously, the King could not be sued in tort for wrongs that it had really sanctioned or that its subordinates had committed while on the job. With the expansion of state powers, the Crown Proceedings Act was established, making the Crown accountable for torts committed by its servants in the same way as a private individual is. Similarly, in the United States, the Federal Tort Claims Act of 1946 establishes the grounds that decide the question of state culpability. The notion that no one is free from the operation of justice was an accepted principle in ancient India, according to Hindu jurisprudence. Even the king, a relative of the king, a judge, or an average citizen were subject to the same punishment. The rule of law was seen as ultimate and binding on all. The king’s principal responsibilities included protecting people, punishing criminals, and maintaining dharma, or social order.
Personal accountability of officers for their wrongdoings was more common in mediaeval Indian history, with evidence demonstrating equality between the sovereign and the governed subject. The state treasury was utilised to pay the compensation only when the king deemed it appropriate to take on the burden of public official. Dharma was regarded as the administrative law that governed both the king and the subjects. In both Hindu and Muslim law, the rulers dispensed justice to the extent practicable, with the rest being handled by extremely skilled and honest judges. The most notable recent development has been the court’s contention that it has the authority to award compensation. Based on English case law, the notion of personal accountability of public workers for wrongs done to citizens is already a component of Indian law.
Article 300(1) of the Constitution, which was derived from Section 176 of the Government of India Act, 1935, now defines state liability in India. Section 32 of the Government of India Act, 1915, which had its origins in Section 65 of the Government of India Act, 1858, was the source of this. The Government of India and the governments of each state are thus in line of succession of the East India Company, as evidenced by the chain of enactments beginning with the Act of 1858. In other words, the government’s liability is the same as the East India Company’s before to 1858.


Sovereign functions are actions taken by the government for which it is not held liable in a court of law. Acts like defence of the country, establishing and sustaining military forces, making peace or war, foreign affairs, and acquiring and retaining territory are examples of external sovereignty functions that are political in character. As a result, they are not subject to the jurisdiction of a regular civil court. The State is immune from suit since the courts’ jurisdiction in such situations is impliedly barred.
In N. Nagendra Rao v. State of AP, the distinction between sovereign and non-sovereign functions was discussed in depth. The court refers to all previous Indian rulings on the subject. In its decision, the court stated the following legal principles: The divide between sovereign and non-sovereign authority does not exist in the modern sense. Everything relies on the nature of the power and how it is used. The supremacy of the legislature in the United States is based on constitutional provisions. The legislature is free to legislate on any issue or subject it chooses. Similarly, the executive has complete discretion over how the law is implemented and administered. A legislation enacted by a legislature may be bad or ultra vires, but because it is an exercise of legislative power, a person affected by it may question its legitimacy, but he cannot sue for carelessness in enacting the law in a court of law. Neither may the government be sued for decisions made in the exercise of its executive power on political or policy issues. It is in the public interest that the State is not held liable in torts for conduct undertaken in its legislative or executive capacities. That would be both unreasonable and unworkable. Even modern concepts of sovereignty would be at odds with it.


  1. Peninsular & Oriental Steam Navigation Company v/s Secretary:
    The case of the Government’s tort culpability in pre-Constitution cases begins with the verdict of the Supreme Court of Calcutta in the case. Secretary of State v. P. & O. Steam Navigation Co. The rationale in this case is that the East India Company or the State would not be accountable if any act was done in the exercise of sovereign functions. It drew quite a clear distinction between the sovereign and non-sovereign functions of the state.
    According to the facts of the case, a servant of the plaintiff-company was driving a carriage drawn by a pair of plaintiff-owned horses on a roadway in Calcutta. The Supreme Court observed that the doctrine that the ‘King can done wrong’, was applicable to the East India Company. The company would have been liable in such cases and the Secretary of State was thereafter also liable. This arose out of the section 65, Government of India Act, 1858, which equated the liability of the Secretary of State for India with that of the East India Company. After distinguishing between sovereign and non-sovereign functions, it was decided that if a public servant committed a tort while carrying out sovereign functions, no action could be brought against the government – for example, if the tort was committed while carrying out hostilities or seizing enemy property as prize. This doctrine of immunity, for acts done in the exercise of sovereign functions, was applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of State. In this case, the plaintiff claimed that the government had signed a contract with him for the issuance of a licence to sell ganja and had broken that contract. The High Court ruled that no breach of contract had been proven based on the evidence. Second, even if there existed a contract, the act was carried out in the exercise of sovereign power, making it unenforceable.
  2. Secretary of State v. Hari Bhanji:
    The Madras High Court ruled in this case that state immunity was limited to activities of the state. The judgement in the P & O Case did not extend beyond acts of state, but it did provide examples of scenarios where immunity was attainableActs of State, it was defined, are acts carried out in the exercise of sovereign power, where the act in question is carried out with the sanction of municipal law and in the exercise of powers bestowed by law. The fact that it is carried out by sovereign powers and is not an act that could be carried out by a private individual does not negate the civil court’s jurisdiction.
    The Hari Bhanji decision in Madras maintains that the government may not be held accountable for conduct related to public safety that are not acts of the state. Ross v. Secretary of State reaffirmed this position. In the case of Kishanchand v. Secretary of State, the Allahabad High Court held a similar stance.
    Making or repairing a military road, on the other hand, was held to be a sovereign function in Secretary of State v. Cockraft, and the Government was held not liable for the negligence of its servants in the stacking of gravel on a road that resulted in a carriage accident that injured the plaintiff.
  3. State of Haryana v. Santra
    This case was decided on the basis of state liability for negligence. It was clearly proved that the doctor was functioning as a government servant and in the course of government employment when performing the operation. As a result, when there was negligence, it amounted to bad faith, and the state’s sovereign immunity defence could not be invoked.
    Furthermore, such neglect that may have been recognised by a professional who had a duty to do so should take into account these concerns and cannot be excused by claiming the petitioner’s permission as a defence. Smt. Santra was due full compensation from the State Government, but her appeal was denied without a cost order.
  4. State of Rajasthan v. Vidyawati:
    The respondents filed a suit for damages caused by a State employee, and the case raised the question of whether the State was liable for the tortious act of its servant – The Court held that the State’s liability in respect of the tortious act committed by its servant while employed and functioning as such was comparable to that of any other employer.
    In this case, it was decided that the State, like any other employer, should be accountable for torts committed by its servant while in the course of his employment and functioning as such.


The entity seeking to be held accountable in all of the above cases is the State, not the government. In terms of the government, the statutory authority may readily be said to be neither accountable nor subordinate to it. As a result, the government cannot be held liable for the consequences of a statutory authority’s incorrect order. Insofar as the State is concerned, it is unable to make such a claim because the Act was enacted by the Legislature. The authority is also appointed by the Statute or by such authority as the Statute may authorise. In such a circumstance, the statutory authority’s action is performed for and on behalf of the State. As a result, the state is held accountable.

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