vicarious liability of state

Vicarious liability: An Introduction

Vicarious liability deals with cases where one person is liable for the acts of others. so in the case of vicarious liability both the person at whose behest the act is done as well as the person who does the act are liable. The common example of such liability are:

  1. Liability of the principal for the tort of his agent;
  2. Liability of partners of each other’s tort;
  3. Liability of the master for the tort of his servant;
  4. Liability of the state or liability of the Administration.

Constituents of vicarious liability

So the constituents of vicarious liability are:-

  1. There must be a relationship of a certain kind.
  2. The wrongful act must be related to the relationship in a certain way.
  3. The wrong has been done within the course of employment.


The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’.To what extend the administration would be liable for the torts committed by its servant is a complex problem especially in developing countries with ever-widening state activities. The liability of the government in tort is governed by the principles of public law inherited from British common law and the provision of the constitution. The whole idea of vicarious liability of the state for the torts committed by its servant is based on three principles:-

1)RESPONDENT SUPERIOR(let the principal be liable)

2) Quifacit per alium facit per se ( he who acts through another does it himself)

3)Socialization of compensation

Under Vicarious Liability, it was conveyed that an individual is liable for the acts of another.

This was stated by the Judiciary which is a part of the State/ Government. This gives rise to a question –

What if the Government’s employees have done any wrongful act resulting in damage to others? The answer to this question is the Vicarious Liability of State. Vicarious Liability of State got evolved by the East India Company in 1858. But the article 300 came into effect in 1950. In India, while there is no clear law dealing with the vicarious liability of the State, Article 300 of the Indian Constitution specifies that the union of India or the Government of State can sue and be sued like any ordinary person. Vicarious Liability of state is also known as the tortious liability of the Government. State’s liability for the tortious actions of its employees is called tortious liability of the State. The state is liable for acts of negligence, wrongful execution, and omission or commission either voluntarily or involuntarily.

In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court classified the functions of secretary of state into two –

1)Sovereign functions

2)Non-Sovereign functions

Sovereign Functions: These are the functions of the state for which the state is not liable under any provision for the wrongful acts of its employees. For example, functions like defense activities, preserving armed forces, maintaining peace and war, diplomacy are some of the sovereign functions for which the state is not liable.

Non-Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.


The origin of this state liability was started around the medieval period when the proverb Res Non-Potest Peccare, meaning- the king can do no wrong, was started to lose its importance in the view of the public. After the 18th century, new industries and democracies have emerged which considered the acts of authorities under judicial search/study so that justice can be rendered to the persons who have suffered from the illegal acts of the authorities. Even the State’s responsibilities have been increased, so the Crown Proceedings Act was formulated in 1947. With this act, the crown was also made liable as much as the private individual.

Evolution in India

In England, it was thrown Proceedings Act, 1947 by which the state was made liable, but in India, there was no statute for the liability of the state. So this law got evolved by the East India Company much before 1858.

Article 300 gave the right to people to sue the Government. But this article came into effect in 1950 i.e., after the adaptation of the Constitution.  Similar provisions are present under Article 176 of the Government of India Act, 1935 and also under Articles 35 and 65 in the Government of India Act 1915 and 1858 respectively.

Justification for the liability

There are many reasons to say that the vicarious liability of the state is justified –

The state is the financially better one.

Government motivates its employee to take reasonable care to avoid accidents which may cause some danger to the third person. This motivation is because the Government is liable to pay any compensation for the acts of the employee.

State gets some profits by the acts of the employee. So, it should hold up losses incurred by the employee’s acts.

All the acts done by the employee in the course of employment are done under the State’s order. So, ultimately the acts are the State’s acts.

As the State has the power to appoint and dismiss its employees, the State must check the work done by its employees.

Landmark cases

Peninsular and Oriental Steam Navigation Company v.  Secretary of State for India

This case is a pre-constitution case that prescribed the difference between sovereign and non-sovereign functions of the state.The simple details, in this case, are that the company’s servant was on his way to Calcutta in a carriage pulled by a couple of horses. An accident took place when the wagon was traveling through the Government’s dockyard. Some of the workers of the Government Dockyard were carrying heavy iron rods to repair a steamer. However, these workers dropped the iron rods, the noise of which affected one of the horses of the Plaintiff.The company filed a suit against the Secretary of State for India to get relief for the damages. The Supreme Court of Calcutta held that the Secretary of State is liable for the damages. This case is the first case that brought upon the difference between sovereign and Non- sovereign functions of the state. As the maintenance of the Dockyard is a non-sovereign function, the Government was held liable.

Many cases are there like:-

State of Rajasthan v. Vidyawati

Kasturilal ralia ram v state of up

Nilabati Behera v state of Orissa.


Before 1858, there was no legislation regarding the liability of Government for the wrongful acts of its subjects.  The decision taken to formulate legislation for this purpose is indeed superior. As our nation is a sovereign, secular and democratic nation, this legislation should be there in order to protect all the above said words.It can be noted that the theory of constitutional tort is a revolutionary jurisprudence established by the courts given the reality that, in the past, the criteria encountered various critiques. A scientific criterion for future cases must evolve at the Apex Court. The U.S. “voting right model” can be introduced to assess the costs of proceedings under Constitutional Tort to prohibit the individual from violating their rights by statute.

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