Abstract

It is observed that in recent years the state has become a major litigant in the court of law on the one hand government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising thr plea of immunity for sovereign acts or acts of state on the other hand till today a comprehensive enactment delineating the liability of state in case of its tortious act has not been promulgated. Tortious liability of the state is assessed through judicial interpretation and activism alone. In India, we don't have any separate act to deal with liability of the state in tort. However, Article 300 of the Indian Constitution states that Government of India and of state can be sued for their tortious act but this article doesn't enlist the circumstances under which we can sue the state for the tortious act of its servants. This article refers back to the pre-constitutional laws like Government of India Act of 1935, 1915 and 1858. Thus one must reach the time of East India Company in order to determine the extent of liability of Government of India today. After the commencement of the Constitution, a considerable change was made by the Judiciary by narrowly interpreting the sovereign immunity to protect the right of the citizen of a democratic country as decided in Vidyawati's case. While deciding cases, it was clear that the court faced the difficulty to decide whether the particular act is sovereign or non sovereign. In certain cases the court adopted the traditional method of treating the functions, as the sovereign function cannot be done by private persons. In certain cases, the court applied the theory of benefit and ratification to restrict liability of the state for non sovereign functions also.

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