Tortious Liability of the State

In one line

The State can be sued for the wrongs its servants commit, and Article 300 is the provision that says so, but it says so by pointing back at the law as it stood in 1950.

In the words a student can write in an exam: a tort is a civil wrong, other than a breach of contract, for which the remedy is an action for unliquidated damages. The tortious liability of the State in India rests on Article 300(1) of the Constitution, which provides that the Government of India may sue and be sued by the name of the Union of India and the Government of a State by the name of the State, in the like cases as the Dominion of India and the corresponding Provinces might have sued or been sued if the Constitution had not been enacted. The Article therefore fixes no substantive rule of its own but carries forward the position under the earlier Government of India Acts, which in turn carried forward the liability of the East India Company, under which the State was liable for acts done in the exercise of non-sovereign functions but not for those done in the exercise of sovereign powers.

The vocabulary first

Tort: a civil wrong independent of contract, for which the remedy is an action for damages. Negligence, trespass, nuisance, false imprisonment, conversion and malicious prosecution are torts.

Vicarious liability: the liability of one person for the tort of another, most commonly of an employer for the acts of an employee committed in the course of employment. The State's liability is vicarious in this sense: it is sued for what its officers did.

In the course of employment means while doing the work he was employed to do, or doing it in an unauthorised way. It does not cover a frolic of the officer's own.

The text of Article 300(1)

The Article provides that the Government of India may sue or be sued by the name of the Union of India, and the Government of a State by the name of the State, and may, subject to any provisions which may be made by Act of Parliament or of the legislature of such State, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

Three things follow, and each is examinable.

1. It is a procedural provision that carries forward substantive law. It tells you who to sue and by what name, and then sends you back to the earlier law for whether the claim lies at all.