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Development of Vicarious Liability of State (Case Comment of Kasturilal v. State of Uttar Pradesh)

Meher Mansi
School of Law, Christ University, Bengaluru
Karnataka, India

Volume II – Issue II, 2019

The maxim that the ‘King can do no wrong’ and the resulting rule of the common law that the ‘Crown was not answerable for the torts committed by its servants’ have never been applied in India. India, as a State, is a mixed economy of vast population. Also, by virtue of being a semi-socialistic economy, the government still plays a major role in almost all aspects of the economy. This means that there is a lot of interaction between the State and the citizens of India, may it be in the form of trading with government companies, or interacting with the State officers such as the police, or the bureaucrats, etc. It is hence of utmost importance that the State should be made liable for all those acts of its officers which cause harm to any of the citizens.

The stance of the Indian Judiciary on the liability of the State for the acts of omission or commission committed by its servants has never been the same, and has kept on changing over the years with varied judgments. The Common Law maxim “Rex Non Potest Peccare”(The King can do no wrong) provided absolute immunity to the Crown in that neither the Crown, nor could its employees or servants ever be held liable for any wrong committed by them. This was, however, never followed in India. The East India Company initially came to India as a trading firm. However, later on it started to rule a large part of the country and the scope of its powers and authority was defined by legislations passed by the British Parliament. After the 1857 uprising the company was dissolved and the rule passed over directly to the British Crown. During this period the liability of the Crown depended upon the powers and authority of the Head of the state. In pre-independence period the liability of the State was a major question which confounded all the courts. At this time a distinction was made between sovereign and non-sovereign functions, with complete immunity being given to the former. However, the scope of sovereign or non-sovereign functions was never clearly defined, and hence depended on judicial interpretation.

 

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