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Constitutional Law II
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 4
2019 Dec (100 marks) Examination
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Mumbai
B.A. LL.B. (Five Years) Sem 4 Constitutional Law II 2019 Dec (100 marks) Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2019 Dec (100 marks) examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2019 Dec (100 marks) examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2019 Dec (100 marks) examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1Discuss the liability of the State for tortious acts of its servants.[16]
Answer
For full marks, cover: the meaning of vicarious liability of the State and the English rule of Crown immunity; the line of statutes from 1858 to article 300; the sovereign and non-sovereign distinction (P. and O. Steam Navigation); the leading Supreme Court cases in order (Vidhyawati, Kasturilal, Nagendra Rao, Chandrima Das); compensation as a public law remedy (Rudul Sah, Nilabati Behera, D.K. Basu); the comparison with England and the United States; the need for legislation; a conclusion.
The problem
An employer is liable for the torts of his servant committed in the course of employment. This is vicarious liability. Is the State liable in the same way? The question arises when its driver, policeman or officer harms a citizen by negligence or a wrongful act.
In England the old rule was "the King can do no wrong", so the Crown could not be sued in tort. That rule was abolished by the Crown Proceedings Act 1947. In the United States the Federal Tort Claims Act 1946 made the Federal Government liable, with exceptions. India has no such statute. Its law comes from article 300 and the cases.
From 1858 to article 300
- Government of India Act 1858, section 65. The Crown took over from the East India Company. The Secretary of State for India could then sue and be sued as the Company could have been.
- Government of India Acts 1915 and 1935. These carried the same rule forward. Section 176 of the 1935 Act let the Dominion and the Provinces be sued in like cases.
- Article 300(1). The Union of India and each State may sue and be sued "in the like cases" as the Dominion and the Provinces could have. This is subject to any law made by Parliament or the State Legislature.
No such law has been made. So the State's liability today is traced back to the liability of the East India Company, and the courts decide each case.
The sovereign and non-sovereign distinction
In Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 5 Bom HCR App 1, decided by the Supreme Court of Calcutta in 1861, a company's carriage was passing the Government dockyard at Kidderpore. Workmen carelessly carrying an iron funnel injured one of its horses. The company sued the Secretary of State.
Chief Justice Peacock held the Government liable. He separated acts done in the exercise of sovereign powers from other acts. For sovereign acts there was no liability. For undertakings that private persons could also carry on, there was. Running a dockyard was of the second kind.
The Supreme Court cases
Liable like any employer. In State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933, a Government jeep was being driven from a workshop to the Collector's residence. The driver drove rashly and killed a man on the footpath. His widow and daughter sued. The Supreme Court held the State liable. Driving a jeep for an official's use is not a sovereign act. The Court said a democratic State's liability should be the same as any employer's, and that article 300(1) governs it.
Immune for sovereign functions. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, a jeweller was arrested on suspicion, and gold and silver were seized from him and kept in the police malkhana. A head constable misappropriated the gold and fled. The Court held the State not liable. The police powers of arrest, search and seizure are sovereign powers given by statute. So the negligence of policemen in exercising them does not make the State liable. The Court itself suggested that Parliament should legislate on the subject.
Immunity narrowed. In N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, officers seized a dealer's fertiliser and foodgrains under the Essential Commodities Act, let them rot, and failed to return them. The Court held the State liable. It said no civilised system can let the executive claim to act in any manner because it is sovereign. Immunity survives only for the primary and inalienable functions: defence, the armed forces, war and peace, foreign affairs and the acquisition of territory. For everything else the State is liable like a private person.
Commercial functions. In Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, a Bangladeshi woman was gang-raped by a group including railway employees at the Yatri Niwas at Howrah station. The Court upheld compensation of ten lakh rupees against the Union. Running railways is a commercial activity, so Kasturilal did not apply. Article 21 protects foreigners too.
Why the distinction is hard to apply
The test asks whether a private person could do the same act. But almost every government activity can be described either way.
- Running a hospital, a railway or a public works department is non-sovereign, so the State is liable for negligence there.
- Keeping goods seized by the police was held sovereign in Kasturilal, though a private warehouse keeper does the same thing.
- A military vehicle on a training exercise may be sovereign, but the same vehicle on a recreational trip is not.
The results seem arbitrary to the victim. A person whose gold is lost in a police station gets nothing, while a person hit by a government jeep is compensated. Critics also point out that Kasturilal followed a colonial rule made for a foreign government. In a democratic republic, the State is the servant of the people and should answer for its servants' wrongs. That criticism explains why the Supreme Court in Nagendra Rao confined immunity so sharply, though without formally overruling Kasturilal.
Compensation as a public law remedy
Alongside the tort suit, the Supreme Court developed a remedy under articles 32 and 226, where a fundamental right is violated by the State.
- In Rudul Sah v. State of Bihar, AIR 1983 SC 1086, a man stayed in jail for over fourteen years after his acquittal. The Court ordered the State to pay compensation in the writ petition itself. Article 21 would be meaningless if the Court could only order release.
- In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, a young man died in police custody, and his body was found on a railway track. The Court held that compensation for breach of fundamental rights is a public law remedy based on strict liability. Sovereign immunity is no defence to it.
- In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, a letter about custodial deaths was treated as a petition. The Court laid down eleven requirements for every arrest. It confirmed that compensation is payable for custodial violence, and that the State may recover it from the guilty officer.
| Remedy | Forum | Sovereign immunity |
|---|---|---|
| Suit in tort | Civil court, article 300 | Only for primary, inalienable functions |
| Constitutional compensation | High Court (226) or Supreme Court (32) | No defence at all |
The need for legislation
The Law Commission's First Report (1956) recommended a law on the liability of the State in tort. Bills were introduced in the 1960s but lapsed. As a result, the law still depends on case-by-case judicial decisions. Kasturilal was never formally overruled, only narrowed. A statute like the English Act of 1947 would give citizens certainty. It could list the few truly sovereign functions that stay immune, and make the State liable for everything else.
Conclusion. The tortious liability of the State flows from article 300 and the law of the East India Company. The old distinction between sovereign and non-sovereign functions protected the State for police and similar acts, as in Kasturilal. But Nagendra Rao and Chandrima Das have reduced immunity to the core sovereign functions, and the State is otherwise liable like any employer. Where a fundamental right is violated, Nilabati Behera gives a public law remedy free of immunity altogether. The direction of the law is clear: in a welfare State, the citizen must be compensated for the wrongs of the State's servants.
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