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Constitutional Tort under Article 300 of the Constitutions
The doctrine of Constitutional Tort enables the state to be held vicariously liable for the actions of its servants. Article 294 and Article 300 of the Constitution of India are the two constitutional provisions in India that enable the doctrine. As per Article 294(b) the rights, liabilities, and obligations of the governors are the same as that of the state or the union and arises out of any contract or otherwise.
Article 300 empowers the Government of the union or any state to be sued or to sue in the courts. It establishes that the state as well as the central government is a juristic person. Article 300 has been taken up from Section 176 of the Government of India Act, 1858. The first part deals with the nomenclature while the second one deals with the extent of liability. The doctrine has two views firstly the pre-constitutional view and secondly the post-constitutional view. Both of them are mostly similar to the activities that are divided into sovereign and non-sovereign functions. The government enjoys the doctrine of sovereign immunity in the case of sovereign functions but is liable for the torts committed while the nonsovereign function.
The pre-constitutional view can be seen in the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State (1861) where the chief justice classified the activities of the state into two categories i.e. sovereign and non-sovereign functions. The state was held liable in this case as the function was non-sovereign. But in another case of Secretary of State v. Hari Bhanji (1882) the justice denied any difference between the sovereign and non-sovereign activities. The interpretation of the same law in different ways leads to the need for a uniform and more clarified law so as to remove any doubt, thus The Government (Liability in Tort) Bill, 1967 was proposed but the same has not been passed and enacted till date.
The post-constitutional view even faced the same type of problem such as the difference between the cases of the State of Rajasthan v. Vidhyawati and Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh. In Vidhyawati's case where a driver negligently hit a pedestrian who died the state tried to claim sovereign immunity. But the court held that it was not a sovereign function, hence compensation was awarded to the deceased's wife. In Kasturilal's case where police fled with the gold of a person, the court provided immunity. This case is still criticized and needs to be overruled.
In the present arena, the court has not been allowing the defence of sovereign immunity in cases where the fundamental right of an individual is being violated. In the case of Rudul Sah v. State of Bihar where the petitioner was illegally confined for 14 years, the court provided him with compensation. Thus the defence of sovereign immunity did not apply. The law has been open to interpretation, but the court needs to set up a fixed guideline so as to provide clarity to the citizens as well.
