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Report No. 152

12.4. State's Judicial decisions on the question of tortious liability.-

In the absence of legislative exercise, the Supreme Court and High Courts by their judicial innovations have been awarding damages against the State for the tortious acts of the public servants of the State. The Supreme Court in State of Rajasthan v. Smt. Vidyawati, AIR 1962 SC 9993 awarded damages for injury caused by a Government car which was rashly and negligibly driven by the employee of State of Rajasthan. The Supreme Court upheld the liability of the State for damages in respect of tortious acts committed by its servants within its scopes of employment.

The view taken in Vidyawati's case was, however, subsequently not approved by a Constitution Bench of the Supreme Court in Kasturi Lal's case.1 The facts of that case were that Kasturi Lal the plaintiff was arrested by the police on the suspicion of stolen property and on a search of the body of the plaintiff, a large quantity of gold was seized and kept in Malkhana. On his release the plaintiff claimed return of the gold seized from him but that was not returned on the ground that the Head Constable in-charge including the gold seized from the plaintiff.

On a suit by the plaintiff against the State for the return of the gold or in the alternative for damages for the loss caused to him, the trial court decreed the same. On appeal, the High Court set aside the decree. The plaintiff approached the Supreme Court in appeal. A Constitution Bench of the Supreme Court relying on the doctrine of sovereign immunity held that since no law had been enacted, as contemplated by Article 300, the suit was not maintainable on the ground of the immunity of the State for the tortious acts of its servants.

The Court observed that the doctrine of sovereign immunity followed in India on the basis of common law principle which prevailed in England in regard to claims made against the State for the tortious acts committed by its servants. The Court further held that this immunity was with regard to the damages resulting from injury caused by negligent or malicious acts of the servants if the employment was referable to sovereign power. The Court referred to the non-exercise of legislative power and expressed its concern in the following words:-

"In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has been told when he seeks a remedy in court of law on the ground that his property has not been returned to him, that he can make no claim of the State, that we think, is not very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the legislature."

Unfortunately, the anxiety expressed by the Supreme Court, and the recommendations made by the Law Commission both have gone unheeded, as no law has been enacted, as yet, with the result, the law laid down by the Constitution Bench of the Supreme Court in Kasturi Lal's case holds the field.

1. Kasturi Lal v. State of Uttar Pradesh, AIR 1965 SC 1039.

12.4. The Supreme Court, however, exercising its power under Article 32 has awarded damages to the petitioners for the injuries suffered both on account of the tortious act of its servants and also on ground of the State being liable to pay compensation for the violation of their Fundamental Rights. A survey of the decided cases would reveal that the Supreme Court in its judicial activist role adopted two ways to redress the victims of abuse of power by the public servants as palliative to the victims by way of right of compensation and to penalise the State for the negligence of its servants.

We do not consider it necessary to discuss all these cases in detail, however, a brief reference may be made to some of them.1-15 The High Courts have also awarded compensation under Article 226 of the Constitution.16-17 Apart from granting relief under Article 32 of the Constitution, the Supreme Court has in a number of cases upheld the award of damages to the aggrieved person against the State.18

In Nilabati Behra v. State of Orissa, (1993) 2 SCC 476, the Supreme Court referred to its decision in Kasturi Lars case and observed that the principle of sovereign immunity does not apply to a claim made under a public law, it accordingly directed the State of Orissa to pay damages to the petitioner in the case of custodial death as it violated Article 21 of the Constitution.

The Court observed that the State had a right to be indemnities and to take such action as may be available against the wrong doers in accordance with law. The brief survey of the judicial decisions would show that though technically Kasturi Lal's case still holds the field, nonetheless courts have been granting relief to the aggrieved persons. But the legal position is not clear, it is, therefore, necessary that statutory enactment is made with regard to the State's liability for the tortious acts of its servants.

1. State of Rajasthan v. Vidyawati, AIR 1862 SC 993.

2. Basava Patil v. State of Mysore, AIR 1977 SC 1749.

3. Nilabati Behra v. State of Orissa, (1993) 2 SCC 746.

4. State of Gujarat v. Memom Mohammed Hazi Hussain, AIR 1967 SC 1885.

5. Rudal Shah v. State of Bihar, AIR 1983 SC 1086.

6. Sebastian M. Monghrav v. Union of India, (1984) 1 SCC 339.

7. Bhim Singh v. State of Jammu & Kashmir, 1983 Supp SCC 564.

8. Bhim Singh v. State of Jammu & Kashmir, (1985) 4 SCC 677.

9. Saheli v. Commissioner of Police, (1990) 1 SCC 422.

10. Death of Sarvinder Singh Grover (in re:), (1993) 1 Cr LR 163 (SC).

11. V. Varmlamma v. State of Andhra Pradesh, 1993 (1) SCALE 19.

12. Rethinam v. State of Gujarat, 1993 (2) SCALE 631.

13. Ravi Kanth v. Director-General of Police, State of Maharashtra, 1990 ACJ 1060.

14. R. Gandhi v. Union of India, AIR 1980 Mad 20.

15. Nalini Bhanot v. Commissioner of Police, 1990 ACJ 345.

16. Basava Patil v. State of Mysore, AIR 1977 SC 1749.

17. See para. 3.29, supra.

18. AIR 1962 SC 1.

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