Comparative Study Of Constitutional Torts Across Various Legal Systems

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T18:52:00.268118+00:00

Updated: 2026-08-26T17:11:45.131+00:00

COMPARATIVE STUDY OF CONSTITUTIONAL TORTS

ACROSS VARIOUS LEGAL SYSTEMS

Hota Ragha Vardhan, Ramaiah College of Law, Bengaluru

ABSTRACT

Torts are civil wrongs that cause a person to suffer some loss or injury as a result of any wrongful act done by the other person. In this context the government may also be held liable for tort as a party. The concept of vicarious liability plays a major role to hold the state tortuously liable. The concept of tortious liability has evolved for various years across various legal systems- English law, American law and Indian law. The Constitution of India provides, under the Articles 294 and 300 provides for contractual and tortious liability of state respectively. The concept of torts by the state has been evolved and discussed across various famous-landmark judgements in the country. Keywords: Tortious Liabilty of The State, Vicarious Liability, English Law, American Law, Indian Law, Article 294 & Article 300 Of Constitution Of India

RESEARCH METHODOLOGY:

This paper uses a doctrinal analysis approach to apply an in-depth analysis of information codes relevant to the chosen topic. Relevant literature was extensively discussed, and a comprehensive analysis was obtained from the content of these sources. In addition, various journals and articles were searched to increase the depth and breadth of the research.

1. INTRODUCTION:

Tort, in common law, civil law and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests (under certain conditions), honour, reputation, and privacy. The term derives from Latin tortum, meaning “something twisted, wrung, or crooked. ”1 The concept of tort encompasses only the actions the lead to civil wrongs. The tortious liability of the state has a connection and nexus with the concept of vicarious liability. For the state to be tortuously liable the actions of the agents of the state or the branches of the state must lead to hold the state vicariously liable. The tortious liability of the state across various legal systems has been evolving over the period of time.

The legal systems of English law, American law and Indian law have recognized the tortious liability concept and it has been evolving over the years through precedents and landmark judgements.

CONCEPT OF VICARIOUS LIABILITY:

Vicarious liability arises when a person is held liable for the actions of a third party along with such person. Vicarious liability, or imputed liability, is indirect liability for the actions of another person, such as a subordinate or child. An employer can be held liable for the unlawful actions of an employee, such as harassment or discrimination in the workplace.2 Vicarious liability can be of three kinds:

1 Basil S. Markensinis, “History & society – tort”, Britannica, Dec 15, 2023

https://www.britannica.com/topic/tort 2 Will Kenton, “what is vicarious liability? Example and How to avoid it?”, Investopedia, July 31, 2023 https://www.investopedia.com/terms/v/vicarious-liability.asp#citation-6

1. Principal & agent relation

2. Master & servant relation

3. Partnership relation

VICARIOUS LIABILITY OF THE STATE:

Since the state is legal entity and not a living personality, it has to act through human agency,i. e. , through servants. It is the liability of the state for the acts of its servants that has to be considered. In other, words it refers to the situation in which the state can be held vicariously liable for the wrongs committed by its servants or employees. 3 Winfield explains the doctrine of vicarious liability thus: The expression 'vicarious liability' signifies the liability which A may incur to C for damage caused to C by the negligence or other tort of B. It is not necessary that A shall have participated in any way in the commission of the tort nor that a duty owed in law by A to C shall have been broken. What is required is that A should stand in a particular relationship to B and that B's tort should be referable in a certain manner to that relationship.

4 The vicarious liability can be encompassed under 2 maxims:

1. Respondeat Superior , that translates to “let the principle be liable”.

2. Qui facit per alium facit per se, that translates to “he who does an act by another does

the act by himself”. The above two maxims are very significant in the tort law. They lay down the basis for the concept of vicarious liability. The maxims to put in layman’s words mean that, any act that one does by influencing another person is deemed to be done by the person himself. Such person must be in a dominating or authoritarian position as to influence another person.

3 C.K.Thakwani, “Lectures on Administrative Law”, 6th Edn., (Eastern Book Company)(2020) 455

4 The Law of Tort (1971) 525

2.TORTS ACROSS VARIOUS LEGAL SYSTEMS:

2.1.ENGLISH LAW

Under the English law the Crown was given absolute immunity and it was declared that crown could not be sued for any tort wrongs committed by its agents or servants. The rule was based on the famous maxim “King can do no wrong”. The maxim was interpreted as such that the crown was absolute authority and no one can question the crown for the mistakes of it’s servants or agents. This interpretation was not right and would lead to concentration of power in one hand. In the year 1863, the case of Tobin v. R 5 it was held that , “If the crown were liable in tort, the principle (king can do no wrong) would have seemed meaningless”. But in the future court proceedings, the increased governmental functions proved that the absolute immunity to the crown would make it very difficult to meet the demands of justice in the society. Prof. Dicey criticised the concept of general immunity of the crown.

Dicey gave what he called as the “absurd example”; “If the queen were herself to shoot the Prime Minister through the head, no court in England could take cognizance of the act”. The case of Adams v. Naylor6, in which the “House of Lords” criticised the concept of absolute immunity. The real meaning of the maxim “The King can do no wrong” would be that the king would have no legal right to do a wrong. It does not mean that the king or the crown can do any wrong according to their whim and fancy and get by without any consequences. It takes for the crown to be diligent and always right to build and inspire a society to be right. The English law was never able to differentiate between the king’s two capacities- personal and political. It makes it hard to judge if to hold the king liable for every act of his servant or not. But in the year 1947 The Crown Proceedings Act was enacted.

It placed the crown in the same position as a private individual. With the increase of functions of the state, the absolute immunity of the crown became incompatible and irrational in the eyes of law.

5 (1863)14 CBNS 505

6 1946 AC 543 (HL)

After the enactment the government was placed in a position as such that it can sue and be sued for tortious acts of its servants and agents.

2.2.AMERICAN LAW

In American legal system, the Rule of Law was absent in the field of government liability, as the government could not be vicariously liable, since it could not be subjected as defendant on the theory. There can be no legal right as against the authority that makes the law on which right depends. The reason for adapting the sovereign immunity principle in American legal system may be financial instability of the American states after the revolutionary war. Mr. Holmes J stated, in the Kwanankea v. Polybank7: “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. ” The idea of the state to be held liable was not recognized in the past.

However, presently the notion and idea of holding the state vicariously liable for tortious activities has completely changed. The current situation in American legal system changed because of the Federal Tort Claims Act, 1946. The Federal Tort Claims Act, also known as the FTCA, is a federal statute which authorizes private tort actions against the United States where, if the United States were a private person, it would be liable to the claimant according to the law of the place where a particular act or omission occurred. The FTCA is codified at 28 U. S. C. Chapter 171. In practice, the FTCA makes the United States liable for the acts of its employees in a similar manner to any other employer. That said, the FTCA does not grant the United States liability for the majority of intentional actions of its employees and does not allow for punitive damages. 8

7 Thakwani 3

8 Legal Information Institute, “Federal Tort Claims Act”, Cornell Law School, January 2023

So far as the general duties are concerned the government is liable in the same manner and to the same extent as a private individual under any circumstances. In the case of statutory functions immunity has been granted to the government and it’s officials.

2.3.INDIAN LAW

In India the maxim and the concept of “king can do no wrong” never existed fully. Absolute immunity to the state was never recognized nor accepted. Kings were always subject to the rule of law and to the system and procedure of justice. Constitutional Provisions: i. Article 294 (b)9 : Succession to property, assets, rights, liabilities and obligations in certain cases.

—As from the commencement of this Constitution— “all rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governor's Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State, subject to any adjustment made or to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab. ” The above article implies that the Government of India can enter into contracts with private individuals. The word ‘otherwise’ would include various liabilities including vicarious and tortious liability of the state. The liability of the state can also arise out of any contractual obligation. ii.

Article 300(1)10. Suits and proceedings. —(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued 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 enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their https://www. law. cornell. edu/wex/federal_tort_claims_act

9 India Const.Art 294(b)

10 India Const.,300(1)

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. Article 300(1) provides that the liability of Union of India or the State Government will be the same as that of the Dominion of India and provinces before the commencement of the Constitution of India. The article provides that the government of India may sue and be sued in the name of UOI or the name of the state. This article places the government both union and state in the position of private individual in matters of tortious and vicarious liability.

3.HISTORICAL OVERVIEW: PRE-CONSTITUTION AND POST-CONSTITUTION

3.1. PRE-CONSTITUTION

The British arrived in India in the 1600s, with the purpose of doing trade in the name of “East India Company”. Queen Elizabeth I issued the Charter in the favour of the Company to operate business in various parts of Asia and India. In 1765 the East India Company obtained the dewani rights from the Mughal Emperors. This led to the formation of the dual characteristic of the company as ; (a)trader & (b)sovereign. The British Crown granted the East India Company significant power through the 1833 Act. This included the right to acquire land, maintain an army, and, crucially, act as the Crown's representative in making treaties with Indian states. However, in 1858, the Government of India Act transferred sovereignty of India from the Company to the Crown. Notably, this Act enabled the Secretary of State to both sue and be sued, paving the way for legal accountability.

The Company's complex nature, encompassing both commercial and governmental roles, led to distinctions being drawn between its "sovereign" and "non-sovereign" functions. While the Company remained liable in tort for actions deemed non-sovereign, its liability for acts considered part of its delegated sovereignty remained a point of contention. The East India Company, despite wielding considerable power, wasn't considered truly

sovereign by the Privy Council in the case of Moodalay v. Morton11. This meant the Company could be sued in ordinary courts, just like any private business, for any legal matters it was involved in. Essentially, the court stripped the Company of its special legal status and treated it like any other trading company. The separation and difference between the sovereign and non-sovereign functions of the state was laid down by the landmark judgement of P&O Steam Navigation Co. v. Secretary of State12. P & O Steam Navigation co. v Secretary of state(1868):

Facts: An employee of P&O Steam Navigation was driving a company carriage when government workers negligently dropped an object, spooking the horses and injuring one. P&O. , sued the government for damages, but the government claimed immunity, arguing it acted as the sovereign Crown. Held: The court rejected the immunity claim, ruling that the Company wasn't truly sovereign. They reasoned that if the Company was engaged in activities "which might be carried on by private individuals," it could be held liable for its employees' negligence during those activities. Essentially, the court said: • Sovereign acts: Things like military operations or seizing enemy property wouldn't hold the Company accountable, as these are sovereign powers typically held by a government.

• Non-sovereign acts: For regular activities, like running a transportation company, the Company would be liable for its employees' negligence, just like any private entity.

11 (1785) 1 Bro CC 469: 28 ER 1245

12 (1868) 5 Bom HCR App 1

This case established a critical precedent: the East India Company could be sued for its non-sovereign acts, paving the way for legal accountability in everyday operations. The broader observations and formulation of law in the case of P&O Steam Navigation Co. , which were factually inaccurate and legally unfounded, were not only followed and reiterated but also expanded upon in subsequent legal cases. One such case, Nobin Chunder Dey v. Secretary of State for India (Nobin Chunder). The case involved a plaintiff who had deposited a sum of money to obtain a license for operating a ganja shop. As the license was not granted, the plaintiff sued the Defendant State, seeking a refund of the deposited amount along with damages. The court, considering the grant of a license for the ganja shop as a "sovereign" function, deemed the action not maintainable.

A relevant decision in this context is the case of Secretary of State for India in Council v.

Hari Bhanji in the Madras High Court. In Hari Bhanji, the plaintiff had to pay an increased excise duty on salt due to a delay in transit caused by employees of Port Authorities. The plaintiff sued the defendant State to recover the amount, and the defendant relied on Nobin Chunder to claim immunity. Contrary to this assertion, the court in Hari Bhanji rejected the argument, stating that the ratio established in P&O Steam Navigation Co. was misinterpreted and misapplied in Nobin Chunder. The court disagreed with the distinction between "sovereign" and "nonsovereign" functions, asserting that the correct criterion was whether the act could be considered an "act of State" within the realm of municipal law.13

3.2.POST-CONSTITUTION

The distinction between sovereign and non-sovereign functions was made by Barnes Peacock C.J. in P & O case. The latter are those which might be carried on by the private individuals too, not having sovereign power. Thus following the P & O case, the State was not made liable for torts committed by its servants in exercise of sovereign functions. This can be analysed through some widely known case laws. (A) The Vidyawati case:

13 Thakwani 3

In the State of Rajasthan v, Vidyawati14 case, a distinct perspective was taken by the court, marking a departure from the stance observed in the P & O case. This case, being the first significant one heard by the Supreme Court post-independence, involved a pedestrian, Vidyawati's husband, who was fatally struck by a government jeep owned and controlled by the State of Rajasthan for the official use of the Collector. The driver, while returning to the Collector's residence after repairing the jeep, was found to have driven recklessly and negligently. The respondent sought compensation from the government, which claimed immunity on the basis that the act occurred during the exercise of sovereign functions. Contrary to the State's claim, the court held that the negligent act in question was not linked to sovereign functions.

It asserted that the State's liability for damages arising from tortious acts of its employees during employment mirrored that of any other employer. The court emphasized that when employment was related to sovereign functions, the scope must be precisely defined. Prior to accepting such a plea, the court must ascertain that the contested act was committed in the course of an undertaking connected to the exercise of sovereign power. The court justified its decision by explaining that the immunity of the Crown from liability was rooted in the feudalistic principle that 'The King can do no Wrong.

' However, with the establishment of a Republican form of government through the Constitution, aiming for a socialistic State with diverse industrial and other activities and a large workforce, the court argued that there was no principled justification or public interest in absolving the State from vicarious liability for the tortious acts of its servants. A thorough examination of the Vidyawati case reveals that, while the court did make

observations expanding the scope of the State's tortious liability compared to the P & O case, it did not completely overturn the test of sovereign functions. Additionally, the court did not explicitly categorize the function in the present case as non-sovereign. (B) Kasturi Lal Ralia Ram Jain v. State of U.P.15 In the Kasturilal v. State of Uttar Pradesh case, the court diverged from the precedent set in the Vidyawati case, adopting a different standpoint by holding the State not liable. The

14 AIR 1962 SC 933: 1962 Supp (2) SCR 989

15 AIR 1965 SC 1039: (1965) 1 SCR 375

court deemed the maintenance of law and order as a sovereign function, asserting that no remedy could be sought against the exercise of police powers. The case involved Kasturilal, who was apprehended by the police with gold and silver suspected of being acquired illegally. Despite Kasturilal's innocence being established, the gold, placed in the police station's malkhana due to the closure of the government treasury, was misappropriated by a Head Constable who fled to Pakistan. Upon release, Kasturilal sought the return of his property, and negligence on the part of State authorities in safeguarding the gold was identified. The court contended that the power to arrest, conduct searches, and seize property were sovereign functions, conferred by statute on specific officers.

It emphasized that if a claim was rooted in an act committed during the course of employment, and if the employment fell within the category of sovereign power, no relief would be available. Critics, including eminent jurist H. M. Seervai, argued that the Kasturilal judgment was flawed. They contended that the court failed to distinguish between an Act of State and an act done under the authority of Municipal Law, overlooking the sovereign and trading functions distinction made in the P and O case. The court's reliance on statutory power as sovereign power was deemed erroneous, and it neglected the fundamental principle in tort law that legal injury should have a remedy. The decision was criticized for ignoring the liability arising from the bailment of goods with the police until guilt is established.

The judgment was considered illogical and self-contradictory, necessitating reconsideration through the court's powers of Judicial Review. Critics argued that if the court had followed the Vidyawati approach, it would have aligned the law with contemporary principles and moved away from the common law doctrine of sovereign immunity. The distinction between sovereign and non-sovereign functions was criticized as outdated, unjust, and outmoded. Despite the court's decision, a state liability bill introduced in Parliament did not become law, missing an opportunity to codify the law of torts related to state liability. (C) State of Gujarat v. Memon Mhd. Haji Hassam16 In the case of State of Gujarat v. Memon Mohammed Haji Hasam, Customs Authorities

16 AIR 1967 SC 1885: (1967) 3 SCR 938

seized certain goods belonging to the respondent under the provisions of the Customs Act, 1962, alleging them to be smuggled goods. The respondent appealed the confiscation order, and while the appeal was pending, the goods were disposed of under a Magistrate's order. The respondent's appeal was eventually successful, leading to the setting aside of the confiscation order, with directions for the authorities to return the goods. In a subsequent legal action against the government, the Supreme Court determined that the government assumed the role of a bailee and, therefore, was obligated to return the goods. The court clarified that the Customs Officer's order was not final, as it was subject to appeal.

If the appellate authority concluded that there were no valid grounds for the exercise of confiscation power, the property could no longer be retained and, under the Act, had to be returned to the owner. The court emphasized that there existed not only a statutory obligation to return the goods but also an implied obligation to preserve the property. Until the order of confiscation became final, there was a legal duty to maintain the property intact and take reasonable care of it, akin to the responsibility of a reasonable person in similar circumstances. Drawing an analogy, the court likened the situation to that of a finder of lost property, highlighting that just as a finder must return the property to its owner upon request, the State Government was bound to return the vehicles once it was determined that the seizure and confiscation were not justified.

In summary, due to the legal obligation to both preserve the property and take reasonable care of it until the confiscation order became final, the court characterized the position of the State Government as that of a bailee. (D) Basavva Kom Dyamangouda Patil v. State of Mysore17 The Supreme Court, in Basavva Kom Dyamangouda Patil v. State of Mysore, reiterated a similar perspective without explicitly referencing the cases of Vidyawati, Kasturi Lal, or Memon Mohammed. In Basavva Patil, stolen ornaments were recovered by police during an investigation and presented before a criminal court, but they were subsequently stolen from police custody before the case's conclusion. After the criminal proceedings concluded,

17 (1977) 4 SCC 358 :AIR 1977 SC 1749

the appellant sought the return of the ornaments or their equivalent value, but the Magistrate, Sessions Court, and Mysore High Court rejected the application, stating that the goods had not reached the court's custody. The Supreme Court overturned the lower courts' decisions and directed the State to pay the appellant the cash equivalent of the property. The court emphasized that when property is stolen, lost, or destroyed, and there is no prima facie defense showing that the State or its officers took due care to protect the property, the Magistrate, in appropriate cases serving the ends of justice, may order payment of the property's value. The court disagreed with the High Court's view that once the articles are not available with the court, the court is powerless to act.

While the proceedings in Basavva Patil were criminal in nature under the Criminal Procedure Code, the court's approach aligned with the circumstances in Kasturi Lal, where the civil action failed due to the classification of the act as a "sovereign function. " Notably, the Supreme Court did not reference Kasturi Lal in Basavva Patil, despite the High Court relying on Kasturi Lal in its decision.

4.OBSERVATIONS:

The discussion highlights the challenge of categorizing acts as either "sovereign" or "nonsovereign" functions when determining the State's liability in tort. The principle that emerges is that the State is immune from liability if the function is deemed "sovereign," but it becomes liable for "non-sovereign" functions. However, formulating a clear test or criterion to make this distinction is inherently difficult. The rigid classification of the State's functions into sovereign and non-sovereign, or governmental and non-governmental, is criticized as unsound and reminiscent of the laissez-faire era. For instance, in the Kasturi Lal case, one could argue that keeping another's goods amounted to bailment, a function that a private person could also undertake. Similarly, in the Memon Mohammed case, a comparable act was deemed to be a bailment.

Conversely, in the Vidyawati case, it could be argued that maintaining a vehicle for the use of a Collector, who had administrative and police duties, constituted a "sovereign function. " The test of whether the act could be performed only by the government or also by a private

individual is also considered unhelpful in resolving the issue. In a modern welfare State, governmental functions have expanded, and not all activities performed by the government are inherently sovereign, such as commercial endeavors like running the railways.

5. CONCLUSION

The tide is turning when it comes to holding the government accountable for its mistakes. Courts are increasingly willing to award compensation to victims of police brutality, wrongful arrest, or brutal treatment in prison. These harsher rulings reflect outrage at the "inhumane attitude" displayed by some state officials. A landmark case, Kasturi Lal, established this trend. While technically still good law, its

impact has been weakened by subsequent rulings like Memon Mohammed and Basauva Patil. These later cases emphasize a practical shift: moving away from rigid distinctions between "government" and "non-government" functions and toward judging based on the specific act itself. This shift is gaining momentum. Even the Law Commission recommends ditching the old system and holding the government liable for things like business ventures or administrative blunders, just like any private entity. As legal expert Prof. Friedman puts it, clinging to old-fashioned notions of a "legally indivisible State" doesn't work anymore. In essence, the argument is simple: if the government acts like a business, it should be held accountable like one. No more special immunity for careless mistakes or harmful actions.

BIBLIOGRAPHY:

BOOKS REFERRED

1. C.K.Thakwani, “Lectures on Administrative Law”, 6th Edn., Eastern Book

Company(2020) 455-468

STATUTES REFERRED

1. The Constitution Of India, Professional Book Publishers,2023

ONLINE JOURNALS REFERRED

1. North Eastern Law Journal , May 5, 2023

https://www.northeastlawjournal.com/post/law-of-torts-vicarious-liability

ONLINE RESOURCES

1. SCC ONLINE

2. AIR ONLINE