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Constitutional Law II
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 4
2019 Jun (100 marks) Examination
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Mumbai
B.A. LL.B. (Five Years) Sem 4 Constitutional Law II 2019 Jun (100 marks) Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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Contents
The questions below are the paper as Karnataka State Law University set it at the 2019 Jun (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 Jun (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 concept of sovereign and non-sovereign functions of the State with reference to Government liability in torts.[16]
Answer
For full marks, cover: what sovereign immunity means and where the idea comes from (the Crown could do no wrong); how article 300(1) carries it into India; the concept of sovereign and non-sovereign functions as three successive tests: the private-person test (P. and O. Steam Navigation, Vidhyawati, Shyam Sunder), the statutory-power test (Kasturilal), the primary-and-inalienable test (N. Nagendra Rao); the judicial pronouncements sorted by the function involved (police seizure, customs seizure as bailee, railways: Memon Mahomed Haji Hasam, Chandrima Das) in a table; immunity has no place in public law (Nilabati Behera); applying the concept in five steps; criticism and the need for a statute; a conclusion.
What sovereign immunity means
Sovereign immunity is the rule that the State cannot be sued for the wrongs of its servants when they are exercising sovereign power. It comes from the old English maxim that "the King can do no wrong". The Crown could not be sued in tort in its own courts. England itself gave this up by the Crown Proceedings Act 1947. In India the rule survived, in a narrower form, through the distinction between sovereign and non-sovereign functions of the State.
A sovereign function is one that only a State can perform, such as making war or keeping order by force of law. A non-sovereign function is one that a private person or company could also carry on, such as running vehicles, railways or a shop. If a servant's wrong was committed in a non-sovereign function, the State is liable like any other employer. If it was committed in a sovereign function, the State traditionally escaped.
How the idea reaches the Constitution
Article 300(1) lets the Union and the States "sue or be sued" in "the like cases" as the Dominion of India and the Provinces could before the Constitution. Their liability, in turn, went back through the Government of India Acts to that of the East India Company. So the Constitution does not state the rule. It sends the courts back to the pre-1950 law, and the courts have shaped the concept since. Parliament has never made the law that article 300(1) allows.
The concept as three successive tests
Test 1: could a private person do it? The distinction began 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 horse drawing the company's carriage was injured by an iron funnel that Government dockyard workmen were carrying carelessly. The Government was held liable. Running a dockyard was an undertaking that private individuals could carry on. Acts done "in the exercise of sovereign powers" stood on a different footing.
The Supreme Court used the same approach in State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933. A Government jeep, driven rashly from the repair shop to the Collector's residence, knocked down and killed a man. The State was held liable exactly as a private employer would be.
It was used again in Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890, decided on 12 March 1974. A Public Works Department truck, sent on famine relief work, was known to overheat. Its engine caught fire on the road. An employee riding in it jumped out on the driver's warning, struck a stone and died. The Court held that famine relief is not a sovereign function "as it has been traditionally understood", because private individuals can and do undertake it. Applying res ipsa loquitur (the accident speaks for itself), the widow's decree was restored.
Test 2: was a statutory power being used? In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, police at Meerut seized gold from a trader on suspicion. A head constable kept in charge of it misappropriated it and fled to Pakistan. The Constitution Bench held the State not liable. Powers to arrest, search and seize are conferred by statute and are sovereign powers. The test asked whether the employment "could claim the special characteristic of sovereign power". Even so, the Court suggested that the legislature regulate the State's liability for its servants' negligence.
Test 3: is it a primary and inalienable function? In N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663, officers seized fertiliser and food grains under the Essential Commodities Act. They let the stock rot, and did not return it even when a court ordered return. The State pleaded Kasturilal. The Court held the State liable. Immunity survives only for "primary and inalienable" functions: defence, the armed forces, war and peace, foreign affairs and acquiring territory. Outside them, the State is liable like anyone else. The Court called any "watertight compartmentalisation" into sovereign and non-sovereign functions unsound.
The pronouncements, sorted by function
The same act can fall either side depending on how the court frames the function. Two more cases show the modern direction. In State of Bombay v. Memon Mahomed Haji Hasam, AIR 1967 SC 1885, vehicles seized under a customs law were sold off while the owner's appeal succeeded. The State was held to hold them as a bailee, bound to take reasonable care, and liable to pay their value. In Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, railway employees took part in the gang-rape of a Bangladeshi woman at a station guest house at Howrah. The Court held that running railways is a commercial activity, so Kasturilal did not help the Union.
| Function | Case | Sovereign? | State liable? |
|---|---|---|---|
| Dockyard work | P. and O. (1861) | No | Yes |
| Driving an official jeep | Vidhyawati (1962) | No | Yes |
| Police seizure of gold | Kasturilal (1965) | Yes | No |
| Customs seizure of vehicles | Memon Mahomed Haji Hasam (1967) | Bailee | Yes |
| Famine relief truck | Shyam Sunder (1974) | No | Yes |
| Seizure under a regulatory law | N. Nagendra Rao (1994) | Not primary | Yes |
| Railways | Chandrima Das (2000) | Commercial | Yes |
No immunity in public law
The concept matters only in a suit for damages in tort. Where a fundamental right is violated, the court may award compensation under article 32 or 226, and immunity is irrelevant. In Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, a young man was taken into police custody and found dead the next day on a railway line. The Court held the death custodial and awarded compensation to his mother. This remedy rests on strict liability, and sovereign immunity "does not apply" to it.
Applying the concept today
A claim against the State for a servant's wrong can be worked through in five steps:
- Which law is invoked? If a fundamental right was violated, a public law claim lies and immunity is out (Nilabati Behera).
- What exactly was the servant doing? Name the activity narrowly, such as driving, storing or guarding, not the department's general purpose.
- Is that activity in the primary core? Only defence, the armed forces, war and peace, foreign affairs and territory still carry immunity (N. Nagendra Rao).
- Did the State take someone's goods? If so, it holds them as a bailee and must take care of them (Memon Mahomed Haji Hasam).
- Was there negligence? Where the facts lie within the State's own knowledge, the accident may speak for itself (Shyam Sunder).
Criticism
- The line is arbitrary. Police seizure was sovereign in Kasturilal, while regulatory seizure was not in Nagendra Rao. A citizen's loss is the same in both.
- The reason has gone. In Shyam Sunder the Court doubted whether immunity has "any moral justification today".
- It survives only for want of a statute. The Law Commission's First Report (1956) recommended a law on the State's liability in tort. Bills were introduced in the 1960s but lapsed, and article 300(1) still points back to 1858.
Conclusion. The concept of sovereign and non-sovereign functions was a device for limiting the State's liability in tort, inherited through article 300(1). The courts have shrunk it from Kasturilal's wide view to Nagendra Rao's narrow core of defence, war, foreign affairs and territory. Running vehicles, railways and relief work, and holding seized goods, now attract ordinary liability. In public law there is no immunity at all (Nilabati Behera). What remains awaits the statute that article 300(1) has always contemplated.
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