Article 300 of the Indian Constitution mentions the concept of state culpability. It stipulates that for the purposes of a lawsuit or legal procedures, the Union of India and the States are juristic persons. Although both the Union of India and the State Governments are capable of being sued and being sued, those situations have not been addressed. We must look back and determine the extent of the liability imposed on the East India Company by the Courts in order to determine whether the state is or is not responsible for a certain act.

Here, the words “administration” and “state” are interchangeable. It is a difficult question to answer whether the government would be held accountable for the wrongdoings of its employees, especially in emerging nations where the scope of state involvement is expanding. The Constitution’s clauses and the public law principles inherited from British common law control the government’s tort liability. Three guiding concepts serve as the foundation for the concept of the State’s vicarious culpability for the wrongs carried out by its agents:

• Respondeat superior (let the principal be liable).
• Quifacit per alium facit per se (he who acts through another does it himself).
• Socialization of Compensation.

Constituents of Vicarious Liability

So the constituents of vicarious liability of state 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.

State Liability

The saying “The King can do no wrong” is a part of English common law, and it states that the King is not liable for the wrongs done by his or her subordinates. However, the standing of the ancient Common law maxim in England was revised by the Crown Proceedings Act of 1947. Previously, the King was immune from tort liability for any wrong that it genuinely authorized or that was committed by one of its subordinates while they were working for it.

The Crown is now equally liable for any wrongdoing committed by its employees as a private individual as a result of the Crown Proceedings Act, which was created in reaction to the expanding state’s functions. In a manner similar to this, the Federal Torts Claims Act of 1946 in the United States establishes the guiding principles and effectively resolves the question of State culpability.

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 wrong ful act so fits employees. For example,functions like defence 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.

In Peninsular and oriental steam navigation company v. Secretary of State for India, 1861 5 H.C.R it was held that, the East India Company would not have been responsible for the act if it had been carried out in the execution of a sovereign function; however, if the function had been one that could have been carried out by a private individual without any delegation of authority by the Government, the company would have been responsible.

In state of Rajasthan v. Vidyawati A.I.R 1962 S.C. 933, According to the Supreme Court, the State is no longer a police state; instead, it has evolved into a welfare state and is gradually turning into a fully fledged socialist state. It would be excessive to assert that the state should be immune from the repercussions of tortious acts committed by its employees while they were employed given the scope of the state’s actions, which not only involve the use of sovereign powers but also its powers as employers in numerous public sectors.

However, In Kasturilal v. State of U.P AIR 1965 S.C. 1039, Due to the fact that the government representatives were exercising their sovereign authority, the state was not held accountable. The question to ask is whether the tortious act was committed by a public servant while performing statutory duties that are ultimately based on the delegation of sovereign powers of the state to that public servant. If so, there may be grounds for a claim for damages.If the answer is yes, the claim for damages for the loss brought on by such a tortious act would not be valid.

In Shyamal Baran Saha v. State of West Bengal A.I.R 1998 Cal 203, It has been noted that an action taken by a government employee in the course of exercising statutory authority is defenseable if it may also be described as an action taken “in the exercise of sovereign powers” or in the performance of official duties. The State was deemed accountable in the aforementioned case because the prerequisites for immunity from liability were not met.

In State of M.P v. Shantibai 2005 ACJ 313 (MP), it was held that the police officers have duty of care and do not enjoy sovereign immunity if their act is negligent (open firing), and State was held liable for such act.

Although the decision of the Supreme Court in Kasturilal’s case still holds good, it can be fairly concluded that for practical purpose its force has been considerably reduced by a number of decisions of the Supreme Court. Without expressly referring to Kasturilal or distinguishing or overruling this case, a deviation from this decision has been made. Under the circumstances in which state would have been exempted from liability if Kasturilal had been followed, state has been held liable in respect of loss or damage either to the property or to a person.

Conclusion

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.