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Report No. 152

12.3. State's liability for compensation in Tort.-

The general law of torts, i.e. the English Common Law as imported into India on the principle of justice, equity and good conscience, with statutory modifications of that law is in force in India. Article 300 of the Constitution provides for the filing of a suit against the Union as well as State Government. The second part of the Article provides, inter alia, that the State may sue or be sued in relation to its affairs if a corresponding province might have been sued or be sued if the Constitution had not been enacted, subject to any law made by legislature.

Thus if a suit is to be filed against the Government in tort, the suit can be filed if such a suit could have been filed against the corresponding provisions of the Constitution had not been enacted. The Article contemplates that the appropriate Legislature would enact law in this respect. The Legislature has, however, made no law as contemplated under Article 300. The question whether the Government is liable to be sued for damages in tort at the instance of an aggrieved citizen remains in a state of quandary and confusion on account of non-exercise of legislative function.

Ordinarily, in a welfare state, a suit in tort for damages should be maintainable against the State and its servants causing injury to an individual. But in the absence of appropriate legislation, as contemplated by Article 300, the liability of the State for the tortious acts of its servants remains the same as it existed prior to the enactment of the Constitution.

Prior to the Constitution the doctrine of the common law of England that King commits no wrong and he cannot be liable for negligence or misconduct, consequently he could not be responsible for the negligence or misconduct of his servants, was in force. This doctrine was based on the premise that the State was not liable for damages caused to any individual in the exercise of sovereign functions. However in England this legal position has been substantially altered by the Crown Proceedings Act, 1947.

There the law has been liberalised and the distinction between the sovereign and non-sovereign functions and governmental or non-governmental functions are no longer in vogue to determine the liability of the State. In India no similar steps were taken. The Law Commission of India considered the question of the liability of the State in tort and it recommended that under Article 300 it was necessary to enact law affording protection to the citizens as even in England the immunity of the Crown was substantially reduced.1

The Law Commission recommended that legislation be enacted making the State liable for the torts committed by its employees while acting within the scope of their employment. In respect of duties of care imposed by the statute, the Commission recommended that if a statute authorised the doing of an act, which was in itself injurious, the State should not be liable, but the State should be liable without proof of negligence for breach of statutory duty imposed on it or its employees which may cause damage.

It further recommended that the State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously and whether or not discretion is involved in the exercise of such duty. The recommendations made by the Commission, have, however, not been implemented so far and no law as recommended has been enacted, with the result that there is considerable amount of uncertainty on the question of liability of the State for the tortious acts of its servants. We reiterate the Commission's recommendations in this regard and recommend that the relevant law as suggested should be enacted.

1 First Report of the Law Commission of India on Liability of State in Tort.

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