Vicarious liability of state and sovereign immunity

VICARIOUS LIABILITY OF
STATE AND SOVEREIGN
IMMUNITY
RESHMA SURESH
ROLL NO: 885
3rd SEMESTER

VICARIOUS LIABILITY OF GOVERNMENT FOR THE TORTS
COMMITTED BY ITS SERVANTS
‘Rex non potest peccare’ (The King can do no wrong) is an
ancient and fundamental principle of the English Law which meant
that if a tort was committed by the King or the King’s servants in the
course of employment, the injured has no right to sue the king
under the vicarious liability. This immunity was available only in
relation to torts, but not for breach of contract and recovery of
property. The courts in various decisions criticized this exemption
given to the king, opining that it was against the principles of equity,
good conscience and justice. Hence, the British Parliament passed
‘The Crown Proceeding Act, 1947’ by abolishing the maxim ‘king
can do no wrong’. Now, the crown can also be sued for his
servants’ tortuous acts committed in their course of employment
under the principle of ‘Respondent superior’.

 In India, the crown assumed sovereignty of India in
1858 and took over the administration of India from the
hands of the company. The Act declared that the
Secretary of State in Council to be a body corporate for
the purpose of suing, and being sued. This concept was
reproduced in Government of India Act, 1915 which
declared in its Section 32 thus:
 “(1) The Secretary of State-in-Council may sue and
be sued by the name of Secretary of State-in-Council as
a body corporate.
 “(2) Every person shall have the same remedies
against the Secretary of State-in-Council as he might
have had against the East India Company if the
government of India Act, 1858 and this Act had not been
passed.”

 This provision was again reproduced in Section 176(i)
of the Government of India Act, 1935 thus:
 “The Federation may sue or be sued by the name of
the Federation of India and the Provincial Governments
may sue or be sued by the name of province, and,
without prejudice to the subsequent provisions of this
chapter, may, subject to any provisions which may be
made by the Act of the Federation or Provincial
Legislature enacted by virtue of powers conferred on
that legislature by this Act, sue or be sued, in relation to
their respective affairs in the like case as the Secretary
of State for India-in-Council might have sued or been
sued in this Act has not been passed.”

 This very provision has been incorporated in Article 300(i) of
the Constitution of India:
 “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 respective affairs in the like cases as the Domination of
India and the corresponding Provinces or the corresponding
Indian states might have sued or been sued if the Constitution
had not been enacted.”
 Neither the Legislature of the States nor the Parliament has
made any Law as contemplated by clause (1) of Article 300 of
the Constitution of India. The present position is that the State
would be liable for damages, if such suit could be filed against
the corresponding province.

 Case Law of Government liability in tort before the
commencement of the Constitution
 The first leading case on the point is Peninsular and
Oriental Steam Navigation Company v. Secretary of
State for India-in-Council. In this case the servants of the
plaintiff’s company were proceeding on a highway in
Calcutta driving a carriage and were passing by the
Kidderpore Dockyard which was a Government property.
The servants of the Government Dockyard were carrying a
piece of iron funnel in the centre of the road. Due to
negligence on the part of the defendant’s servants the funnel
fell down and its clang frightened the horse and it injured.
The plaintiff sued the Secretary of State for India-in-Council
for the damage. An act was brought for recovery of the
damages of Rs.350 against the Secretary of State for India-in-
Council, as employer of the workmen.

 It was held, that maintenance of the Dockyard was
considered to be a non sovereign function and as
such the Government was held liable. As the
impugned act fell within the non-sovereign
functions, the action was maintainable.
 In Secretary of State v. Cockraft, it was held that
maintenance of a military road is a sovereign
function and the Government is not liable for the
negligence of its servants in stacking of gravel on a
road which resulted in a carriage accident causing
injuries to the plaintiff.

 After the commencement of the Constitution – Cases
 In State of Rajasthan v. Vidyawati, a temporary
employee of Rajasthan Government while driving a
Government jeep car from workshop after repairs
knocked down a pedestrian, by rash and negligent
driving. The pedestrian sustained multiple injuries as a
result of which he died. In the suit by his widow against
State of Rajasthan for damages the Supreme Court held
that the State was liable because the accident took place
while the car was returning from workshop which was
not an act in the exercise of sovereign function.

 (2) In Kasturi Lal v. State of U.P., a person was taken
into custody on suspicion of being in possession of
stolen property and taken to a police station. His
property including certain quantity of gold and silver was
taken out of him and kept in Malkhana till the disposal of
the case. The gold and silver was misappropriated by a
police constable who flew to Pakistan. The appellant
sued the State of Uttar Pradesh for returning of the gold
and silver and in the alternative, claimed damages for
loss caused by negligence of Meerut police. The
Supreme Court held that the State was not liable as the
act of negligence was committed by the police officers in
the exercise of sovereign powers. By holding the power
to arrest a person, to search him, and to seize property
found with him are powers conferred on the Police
Officers by statute as sovereign powers.

 In Shyam Sundar and others v. The State of
Rajasthan, Navneetlal, an employee of the State of
Rajasthan was, at the material time, working in the office
of the Executive Engineer, Public Works Department,
Bhilwara, as a storekeeper. In connection with the
famine relief work undertaken by the department, he
was required to proceed to Banswara. For that purpose,
he boarded a truck owned by the department from
Bhilwara and reached Chittorgarh in the evening. After
having travelled for 4 miles, the engine of the truck
caught fire. The driver cautioned the occupants (i.e.
Navneetlal and other three other persons) to jump out of
the truck. While doing so, Navneetlal struck against a
stone lying by the side of the road and died
instantaneously. The Supreme court held that it is not a
sovereign function of the state and could be undertaken
and done even by a private authority.

 Sovereign power
 Every State exercises sovereign power in its territory.
In performing its functions, it enjoys sovereign immunity.
This sovereign immunity is necessary for its existence
and functions. However, the State should follow the
following conditions:
 (1) The employees of the State must exercise the
sovereign functions legally. If they violate the law, their
act cannot be treated as an act of sovereign function, and
the State shall be held responsible.
 (2) The State is liable for the torts committed by its
servants in exercise of non-sovereign powers. The State
is not liable for the torts committed by its servants in
exercise of sovereign power.
 (3) Maintenance of law and order, services of defence
forces, administration of justice etc. are considered to be
the sovereign functions.

ACTS COMMITTED IN THE EXERCISE
OF SOVEREIGN POWERS.
 In State of Orissa v. Padmalochan [AIR 1975 Ori.
41], A mob emerged on the scene of the office of
the Sub-Divisional Officer, Orissa to protest. Military
Police and some police personnel manhandled
some persons of the mob resulting in injury to
plaintiff. The Court observed that although police
personnel manhandled the plaintiff without
permission of the Magistrate but it occurred while
the sovereign power.

 In Baxi Amrik Singh v. Union of India, the driver,
Amrik Singh who was in the car received serious injuries
when an accident happened with the military truck,
which was driven by the driver, who was an employee of
military department. Amrik Singh brought an action
against the department. The Court observed that the
driver was on duty to check army-personnel-on-duty
throughout the day and he was discharging the
sovereign power. It was held since the military driver
was acting in discharge of a sovereign function of the
State, the Union of India was not liable for injuries
sustained by Amrik Singh as a result of rash and
negligent driving of the military driver.

 In Union of India v. Harbans Singh,
meals were being carried from the
cantonment, Delhi for distribution to
military personnel on duty. The truck
carrying meals belonged to the military
department and was being driven by a
military driver. It caused an accident
resulting in the death of a person. It was
held that the act was being done in
exercise of sovereign power, and,
therefore, the State could not be made
liable for the same.

 In State of M.P. v. Chironji Lal, the police
lathi charged an unruly mob consisting of
the students. In that agitation the students
hired the loud speaker of the plaintiff. In the
lathi charge, the plaintiff’s loud speaker
was damaged. He sued the State
Government for compensation. It was held
that the State Government was not liable to
pay compensation to the plaintiff as its
employees (police officers) did the act in
exercising the function of sovereign.

 In State of M.P. v. Chironji Lal, the police lathi
charged an unruly mob consisting of the students.
In that agitation the students hired the loud speaker
of the plaintiff. In the lathi charge, the plaintiff’s loud
speaker was damaged. He sued the State
Government for compensation. It was held that the
State Government was not liable to pay
compensation to the plaintiff as its employees
(police officers) did the act in exercising the function
of sovereign.

ACTS COMMITTED IN EXERCISE OF NON-SOVEREIGN
POWERS
The performance of only such acts can be said to be in
exercise of the sovereign powers which could not be
performed under the statute by any individual other than
the persons who allegedly perform the same. The
traditional sovereign functions are the making of laws,
the administration of justice, the maintenance of order,
the repression of crime, carrying on of war, the making of
treaties of peace and other consequential functions.
Whether this list be exhaustive or not, it is at least clear
that the socio-economic and the welfare activities
undertaken by a modern State are not included in the
traditional sovereign functions and are considered as
non-sovereign powers.

 In Union of India v. Sugrabai, a military driver
was driving a truck carrying machine from military
depot to military school of army. The driver killed a
cyclist by rash and negligent driving. The Court held
that it was a function which could be performed by
a private person and hence the Government was
liable by holding that was not acting in the exercise
of the sovereign functions.

 In Satyawati Devi v. Union of India, Air Force
personnel played the game and returned by a bus. The
bus driver drove the bus negligently causing the death
of the husband of Satyawati Devi. The Central
Government pleaded that the accident was occurred
during the sovereign function and that too for defence
purpose as physical exercises were necessary to keep
the personnel in shape. But, the Court rejected the
Government’s contention and held that the act carrying
the teams to play matches could be performed by a
private individual and, therefore, it was not sovereign
function and the Government was liable.

 In Union of India v. Savita Sharma, it was held
that the driving of a military truck to Railway
Station to bring the jawans to Unit Headquarters
is an act of non-sovereign function and, therefore,
if the respondent gets injured while the truck is
being so driven, she is entitled to get
compensation.
 In Union of India v. Abdul Rehman, it was held
that the driving of a water tanker belonging to
Border Security Force (BSF) by a BSF driver is a
non-sovereign function, and the State is liable for
the damage caused by the negligent driving of
the tanker.

 In The ‘Ad hoc’ Committee, the Indian Insurance
Company Association Pool, Bombay v. Smt.
Radhabhai, a motor vehicle belonging to the State
and the relevant time allotted to the Primary Health
Centre, Nanipur, was involved in an accident in
which one Babulal died. Babulal’s wife and son
brought an action to recover damages. At the
relevant time the vehicle was proceeding to a place
where some children were seriously ill with a view to
bring them for a treatment at Nanipur. It was held
that the medical relief work undertaken by the State
through the Primary Health Centre, Nanipur, in which
the vehicle in question was engaged at the time
traditional sense and the State was held liable.

 On the basis of Supreme Court decisions on vicarious
liability of State for the acts of its servants, following
principles emerge as per Dr. S.K. Kapoor:
 (i)The Union of India and the State have the same
liability for being sued in tort committed by their
servants which the East India Company had.
 (ii) The Union and the States are liable for damages
for injuries caused by their servants if such injuries
would render a private employer liable.
 (iii) The Government is not liable for tort committed
by its servants if the act was done in exercise of
sovereign power.


 (iv) Sovereign powers mean powers which can be
lawfully exercised only by a person by virtue of
delegation of sovereign powers.
 (v) Government is vicariously liable for tortious
acts of its servants which have not been committed
in exercise of sovereign functions.
 (vi) The Court is to find out in each case if the
impugned act was committed in exercise of
delegated sovereign power.
 (vii) No well defined tests as to the meaning of
sovereign power have been attempted or can
precisely be laid down. Each case must be decided
on its own facts. Functions relating to trade,
business and commercial undertakings and other
socialistic activities by a welfare State do not come
within the purview of delegated sovereign authority.


 (viii) The sovereign function of the State must
necessarily include the maintenance of the army,
various departments of the Government, for
maintenance of law and order and proper administration
of the country which would include magistracy and
police and the machinery for administration of justice.
 (ix) Where the employed in the course of which a
tortious act is committed is of such a nature that any
private individual can engage in it, then such functions
are not in exercise of sovereign power.
 (x) In determining whether immunity should be allowed
or not, the nature of the act, the transaction in the
course of which it is committed, the nature of
employment of the person committing it and the
occasion for it have all to be cumulatively taken into
consideration.

 Even after suggestion made by the Supreme
Court, the Parliament is yet to change the existing
law, due to which citizens are still suffering. A new
line of action under writ jurisdiction (Arts. 32 and
226) has been adopted to render justice and
compensate those whose fundamental right to life
and personal liberty under Article 21 (or any
other fundamental right) of the Constitution of
India, are violated by the wrongful acts of
Government officials or servants while performing
even sovereign functions.

 In Nilabati Behra v. State of Orissa, petitioner’s
son died as a result of injuries inflicted on him in
police custody. The petitioner sent a letter to the
Supreme Court regarding all his suffering. The
Supreme Court treated it as a petition under
Article 32 of the Constitution. The Court held the
State of Orissa liable and awarded a
compensation to the petitioner. Justice Verma
observed, “Award of compensation in a
proceeding under Article 32 by this Court or by the
High Court under Article 226 of the Constitution is
a remedy available in public law based on strict
liability for contravention of fundamental rights to
which the principle of sovereign immunity does
not apply, even though it may be available as a
defence in private law in an action based on tort.

 In State of Madhya Pradesh v. Shatibhai, police
fired in air to disperse mob. Plaintiffs who were
standing on roof of their houses sustained injuries
from bullets fired in the air. The police officers were
aware of their presence. It was held that the Police
Officers had the duty to take care that no injury
caused to persons living in nearby houses. The
Police Officers were negligent towards plaintiffs and
hence were held liable to pay compensation under
Article 21.

 In Bhim Singh v. State of J &K, the
petitioner (Bhim Singh), who was a member
of the Legislative Assembly was arrested by
police officers whiole he was on his way to
Srinagar to the State (Police) deprived the
petitioner’s Fundamental Right under
Articles 21 and 22(2) and the State was held
liable. The Court granted compensation to
the petitioner.

 In Kalawati v. State of Himachal Pradesh, two
persons died in aGovernment Hospital owing to
negligence of hospital staff who administered
nitrous oxide in place of oxygen to the patients.
The Court awarded compensation under Article
21.
 In Saheli v. Commissioner of Police, Delhi,
the Supreme Court awarded the compensation of
Rs. 75,000/- to the mother of the boy aged 9 who
died due to beating and assault by a Police
Officer, in the writ filled by the women’s Civil
Rights Organisation, known as SAHELI.

 In C. Ramkonda Reddy v. State of A.P.certain
miscreants entered the jail with the help of a
ladder at night and hurried bombs on inmates,
resulting in the death of one of them and injury to
another. As there was considerable violation of
the right to life guaranteed by Art. 21, the claim
for compensation was allowed. It was observed
that even if the State is acting in exercise of
sovereign power, it would be liable if Article 21 is
violated, as Article 300(1) does not constitute an
exception to Article 21.

DEFENCE OF SOVEREIGN IMMUNITY
 Sovereign
 The term ‘sovereign’ means a political superior
who is not subject to any other political superior.
The term ‘sovereign’ is used in England to
designate the King or Queen of the United
Kingdom. ‘Sovereign’ is a person; body or State in
which independent and supreme authority is
vested. He is a chief ruler with supreme power; a
King or other ruler with unlimited power, supreme
civil, military, and political power; the person or
body of persons in whom the ultimate authority of
law rests.

Immunity
 Immunity is a personal favour granted by
law contrary to the general rule. Immunity is
the freedom from liability; exemption
conferred by a law, from a general rule. An
immunity is a right peculiar to some
individual or body; an exemption from some
general duty or burden; a personal benefit
or favour granted by law contrary to the
general rule.

Sovereign immunity
Sovereign immunity was developed on the
divine right of Kings and the maxim ‘Rex non
potest peccare’ i.e. the King can do no wrong. The
meaning of this legal maxim is multi-faceted-
(i) The sovereign, individually and personally
and also in his natural capacity as the King cannot
be sued by any earthly power or cannot be
amenable to any jurisdiction.
(ii) The public affairs are not to be imputed to
the King, so as to render him personally
answerable for it to his people.
(iii) The prerogative power of the crown does
not injure anybody in the country.
(iv) The King cannot sanction any act forbidden
by law. He is bound by the law. He is under the law
but not above the law.

 Under the common law of England, the King cannot be
made liable for any wrong done as he is above laws and
that everything he does is of course just and lawful. It
only means that the sovereign individually and
personally, and in his natural capacity, is independent of,
and is not amenable to any other earthly power or
jurisdiction, and that his act related to public affairs is not
to be imputed to the King so as to render him personally
answerable for it to his people. The King could not be
sued in his own Courts. Petition of right was the only
remedy available against the crown. It was available for a
breach of contract or for recovery of goods, money or
land wrongfully taken by the Officers of the crown. The
King cannot be made liable for wrong done by his
servants who are acting under express or implied
authority. The crown was immune for the torts of its
servants.

 Sovereign immunity means, an act of sovereign
authority of a State which cannot be challenged, or
interfered with by municipal Courts. It may be known as
an act of the executive of a State or it may be called as
‘sovereign immunity’. When there was an act by a
sovereign State on its own citizen either the municipal
Courts or any other State cannot question the act. It
means, the sovereign immunity saves the State and its
employees from the tortious liability.
 Act of State means an act of the executive i.e. the
sovereign power of a country, that cannot be
challenged, controlled or interfered with by municipal
Courts. Its sanction is not that of law but that of
sovereign power and, whatever it may be, municipal
Courts must accept it as it is, without question.

 In Buran v. Denman the plaintiff (Buran) owned slave
Barracoons in the West Coast of Africa. It was situated
outside the dominion of Britain. The defendant ( a
Captain in the British Navy) attacked the plaintiff’s
barracoons and burnt it and released all the slaves in
it. The act of the defendant was ratified by the British
Government. The plaintiff sued the defendant for
compensation, the defendant contended that his act
was ratified by the State hence he was not held liable.
The House of Lords held that the ratification for the act
committed by the defendant was valid, hence it was an
act of State. It was held that the defendant was not
liable to pay compensation to the plaintiff.

SOVEREIGN’S PERSONAL IMMUNITY
 A sovereign prince or the other person representing an
independent State is not liable to be sued in the Courts of
the land unless he submits to its jurisdiction. The reason
for this is expressed by the Court of Appeal thus; “As a
consequence of the absolute independence of every
sovereign authority, and of the international comity which
induces every sovereign State to respect the
independence and dignity of every other sovereign State,
each and everyone declines to exercise, by means of its
Courts any of its territorial jurisdiction over the person of
any sovereign or ambassador of any other State or over
the public property of any ambassador, though such
sovereign, ambassador or property be within its territory
and therefore subject to its jurisdiction.”

 In Feather v. The Queen, it was held that no
proceeding, civil or criminal, is maintainable against
the sovereign in person. In tort, even the remedy by
petition of right is not available. However, if the King
obtains loans from individuals for his personal needs,
those individuals can sue the King for the recovery of
the money and thereby, the defence of sovereign
immunity does not indemnify the King. If the King
personally commands ‘A’, a servant to do an unlawful
act, the offence done by ‘A’ is not indemnified.

 In India, there is provision for immunity of President
and the Governor under the Indian Constitution under
Article 361, but a distinction is made between acts done
by them in their public and personal capacity.
 (a)For acts done or purported to be done by them in
their public capacity their immunity is absolute, and no
action lies against them in a Court of law.
 (b) For acts done by them in their personal capacity
i.e. as individual, there is no such immunity but a suit
would lie only if two months’ notice in writing has been
delivered to them, stating the nature of the proceeding,
cause of action, etc.

SOVEREIGN IMMUNITY FOR TORTIOUS ACTS OF
PUBLIC SERVANTS
At Common Law, the immunity of the crown extended to
wrongs committed by the servants of the crown. Hence,
neither the crown nor any Department of the
Government was liable for wrongful acts of public
servant. But the Crown Proceedings Act, 1947 was
passed and it has changed the position completely, now
the crown can be held liable for torts committed by its
servants.
The Act provides that the crown shall be subject to all
liabilities to which a private person of full age and
capacity would be subject, in respect of-
(a) torts committed by its servants;
(b) any breach of those duties which a person owes
to his servants at common law by reason of being their
employer; and

(c) any breach attaching at common law to ownership,
occupation or possession of property.
The crown will also be liable in respect of a failure to
comply with any statutory duty which is binding upon it
as well as upon persons other than the crown and its
officers.
The expectations to this liability are- No proceeding
will lie in respect of-
(i) any act or omission by any person discharging
judicial functions;
(ii) death or personal injury caused by or suffered by
members of the armed forces on duty and acting in the
discharge of their duties;
(iii) anything properly done or omitted in exercise of
the prerogative or statutory powers of the crown.

It is also to be noted that the liability of the crown is
confined to wrongs committed by its servants and
agents and does not extend to those committed by
the servants of statutory corporations and other
bodies which function outside ministerial control.
In India, Article 300 of the Constitution of India
provides that subject to any law that may be
hereafter made by Parliament or a State
Legislature, the Government of India or of a State
may sue or be sued in relation to their respective
affairs in like cases where the Dominion of India or
a Provincial Government might sue or be sued, had
not this Constitution been passed.

DEFENCE TO SOVEREIGN IMMUNITY
Every State exercises sovereign power in its territory. In
performing its functions, it enjoys sovereign immunity.
This sovereign immunity is necessary for its existence
and functions. The sovereign immunity is available for the
exercise of sovereign powers only. Maintenance of law
and order, services of defence forces, administration of
justice, etc. are considered to be the sovereign functions.
The sovereign immunity is not available for the torts
committed by its servants in exercise of non-sovereign
powers. The employees of the State must exercise the
sovereign functions legally. If they violate the law, their
act cannot be treated as an act of sovereign function and
hence, no sovereign immunity.

The following sovereign functions are entitled for the
sovereign immunity as per the judgments of Courts
and no action lies against the Government for injury
done to an individual in the course of exercise of the
sovereign functions of the Government:
i) commandeering goods during war;
ii) making or repairing a military road;
iii) administration of justice;
iv) improper arrest, negligence or trespass by the
Police Officers;
v) wrongful refusal by Officers of a Revenue
Department to issue license to the plaintiff, causing
him damage;

 vi) negligence of Officers of the Court of Wards in the
administration of an estate under its charge;
 vii) wrongs committed by Officers in the
performance of duties imposed upon them by the
Legislature, unless the statute itself prescribes the
limits or conditions under which the executive acts are
to be performed;
 viii) loss of movables from Government custody
owing to negligence of Officers;
 ix) payment of money in custody of Government to
a person other than the rightful owner, owing to
negligence of Officer in the exercise of statutory affairs,
where Government does not derive any benefit from
such transaction.

Defence of sovereign immunity is limited only to primary
and inalienable functions of Constitutional Government.
Suit filed by any person for negligence of Officer of
State in discharge of statutory duty under a law not
referable to primary function cannot be dismissed on the
ground of sovereign immunity, since the demarcating
line between the sovereign and non-sovereign functions
has disappeared. Therefore, barring functions such as
administration of justice, maintenance of law and order
and repression of criminal which are among the primary
and inalienable functions of a Constitutional
Government, the State cannot claim any immunity.
The State may enact a law and may delegate its
functions for proper exercise of primary functions like
maintenance of law and order or repression of crime,
violation of which may not be sued in torts, unless it
trenches into and encroaches on the fundamental rights
of life and liberty guaranteed by the Constitution.

 In N. Nagendra Rao & Co. v. State of A.P,
the commodities seized under the Essential
Commodities Act, 1955 and ordered to be
returned, were deteriorated in quality and
quantity due to negligence of Officers of
State. The suit for price of the damaged
commodities cannot be dismissed on the
ground of sovereign immunity, because the
seizure and confiscation under the Act was
not in exercise of power which could be
considered to be an act of State of which no
cognizance could be taken by the Civil
Court.

 A law made by a legislature may be bad or may be ultra
vires, but since it is an exercise of legislative power, a
person affected by it may challenge its validity but
cannot approach a Court of Law performed by the State
either in its legislative or executive capacity it should not
be answerable in torts.
 Acts such as defence of the country, raising armed
forces and maintaining it, making peace or war, foreign
affairs, power to acquire and retain territory, are
functions which are indicative of external sovereignty
and are political in nature. Therefore, they are not
amenable to the jurisdiction of ordinary Civil Court. No
suit under the Code of Civil Procedure would lie in
respect of it. The State is immune from being sued, as
the jurisdiction of the Courts in such matter is impliedly
barred.

 Under some circumstances, the defence to tortious
liability is available to an executive to play with the
people of its country and the State is entitled to act
in any manner, as it is sovereign. In State of
Assam v. Md. Nizamuddin Ahmed, it was held
that the seizure of seed by the State was in
exercise of the sovereign power and if they suffer
damage when kept in police station, the plaintiff
was not entitled to collect damages from State. The
claim of plaintiff for damages with interest for
alleged illegal seizure was rejected.
 [AIR 1999 Gau. 61]

In Pagadala Narasimham v. Commr. And Special
Officer, Nellore Municipality, Nellore, it was
observed that the State nor its Officers were held
liable where the traffic police, with the help of
municipal staff, removed a non-working bus parked on
the road causing obstruction to traffic. No liability
could be fastened against the Officers of State in
discharge of their duty. If the seizure and detention of
vehicle is illegal, a claim may be made against the
State.
As per the doctrine of defence of sovereign
immunity no action is maintainable against the State
for things done in exercise of its sovereign functions.

On the other hand, the defence of sovereign immunity is
not available to the State for wrongs done by public
servants in the course of transactions which a trading
company or a private person could engage in, such as the
following;
i)injury due to the negligence of servant of the
Government employed in a dockyard;
ii) trespass upon or damage done to private property in
the course of a dispute as to a right to land between
Government and the private owner,
iii) whenever the State has benefited by the wrongful act of
its servants whether done under statutory powers or not,
the State is liable to be sued for restitution of the profits
unlawfully made, just as a private owner e.g. where
Government retains property or moneys unlawfully seized
by its Officers, a suit lies against the Government for its
recovery, with interest;
iv) defamation contained in a resolution issued by
Government.

 In State of Rajasthan v. Vidhyawati, a jeep was
maintained and used by the District Collector. The
jeep driver drove the jeep in a rash and negligent
manner and caused an accident resulting in the
death of the husband of the plaintiff. The widow
sued the State Government for damages. The State
Government pleaded the defence of sovereign
immunity. The Supreme Court gave the judgment in
favour of the widow and ordered the
appellant/defendant i.e. the State of Rajasthan to
pay damages to her as the State of Rajasthan
cannot escape liability so long as there is nothing to
show that the predecessor, the Union of Rajasthan
was not liable by any rule of positive enactment or
by the Common Law.

Vicarious liability of state and sovereign immunity

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Vicarious liability of state and sovereign immunity