Article 300(1) 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, and that they may, subject to any provisions made by Act of Parliament or of a State Legislature, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or Indian States might have sued or been sued if this Constitution had not been enacted.
The consequence of that drafting. Article 300 does not itself state when the State is liable. It preserves the position as it stood immediately before the Constitution, and invites Parliament or a State Legislature to legislate. No such comprehensive law has ever been enacted, so the whole subject continues to rest on a chain of nineteenth century authority applied to modern facts. The chain runs from Section 65 of the Government of India Act, 1858, through Section 32 of the Act of 1915 and Section 176 of the Act of 1935, to Art.300.
The Sovereign and Non-Sovereign Distinction
Facts: A servant of the company was driving a carriage drawn by two horses when workmen employed in a government dockyard, carrying a heavy piece of iron funnel casing, dropped it on the road. The horses were startled, one was injured, and the company sued the Secretary of State for India.
Issue: Whether the Secretary of State was liable for the negligence of servants employed by the Government.
Held: Liability existed. Peacock CJ drew the distinction that has governed the subject ever since. The East India Company had a dual character: it exercised sovereign powers of a delegated kind, and it also carried on commercial or trading activities of a sort a private individual might carry on. For acts done in the exercise of sovereign powers no action lies, since such acts have no private law counterpart. For acts done in the conduct of undertakings which might be carried on by private persons without sovereign authority, the Government is liable exactly as a private employer would be. Maintaining a dockyard fell in the second class.
Relevance: The foundational case, and the origin of the sovereign and non-sovereign classification. Note that the distinction was borrowed from the peculiar constitutional position of the Company and has been criticised as having no application to a modern State.
The narrowing in Secretary of State v Hari Bhanji (1882). The Madras High Court held that the immunity was confined to acts of State, that is acts done outside the sanction of municipal law and not cognisable by municipal courts at all. Where the act complained of was done under the authority of municipal law, no immunity arose merely because the function was public. This is the more principled line, though it was not consistently followed.
Facts: A jeep owned by the State and used by the Collector for official purposes was being driven back from the workshop after repairs by a government driver. Driven rashly and negligently, it knocked down a pedestrian who died of his injuries. His widow sued the State.
Issue: Whether the State is vicariously liable for the negligence of its servant in the course of employment.
Held: The State was liable. The act had nothing to do with any sovereign function; driving a vehicle back from a workshop is an activity any private employer might undertake. The Court observed that in a welfare State which undertakes a vast range of commercial and industrial activity, the old immunity founded on feudal notions of the Crown's position has no place, and there is no reason to hold the State immune where a private employer would be liable.
Relevance: The high water mark of the liberal approach. Set it against Kasturi Lal, decided three years later, to show the inconsistency that troubled this branch of law.
Facts: A partner of a firm dealing in bullion was arrested by police in Meerut on suspicion of possessing stolen property. Gold and silver in his possession were seized and kept in the police malkhana. The silver was returned, but the gold was misappropriated by the head constable in charge, who absconded to Pakistan. The firm sued the State for the value of the gold.
Issue: Whether the State is liable for the loss of property seized by police in exercise of statutory powers of arrest and seizure.
Held: The State was not liable. The power to arrest a person, to search him and to seize property found on him is a power conferred by statute and is referable to the sovereign functions of the State. Applying the P & O Steam Navigation classification, the tortious act was committed by the servant while discharging duties assigned to him in the exercise of a delegated sovereign power, and no action lay. Gajendragadkar CJ nevertheless recorded his dissatisfaction, observing that the law was unsatisfactory and calling for legislation on the lines of the English Crown Proceedings Act, 1947.
Relevance: The principal setback. It must be cited in every answer, together with the criticism and with the later authority that has drained it of effect. The absurdity to point out is that the victim of police negligence recovered nothing while the victim of a badly driven government jeep recovered in full.
Facts: Large stocks of fertiliser and foodgrain belonging to a dealer were seized by officers under the Essential Commodities Act, 1955. The confiscation proceedings ultimately failed, but by then the goods had been kept so negligently that they had deteriorated and become worthless. The dealer sued the State.
Issue: Whether the seizure of goods under a statutory power is a sovereign function attracting immunity, and whether the sovereign and non-sovereign distinction survives.
Held: The State was liable. The Court held that the distinction between sovereign and non-sovereign functions no longer holds good in a modern welfare State which trades, manufactures, transports and distributes. Immunity, if any, survives only for functions which are inalienable and primary, such as the defence of the realm, the conduct of foreign affairs, the administration of justice, the making of laws, and the maintenance of law and order in the strict sense of quelling disorder. Everything else the State does, it does as any other person might, and it must answer for negligence in doing it. Where a statute confers a power of seizure, it also imposes a duty to take reasonable care of what is seized, and breach of that duty sounds in damages. Kasturi Lal was held to have lost its relevance.
Relevance: The modern position. State the test in its own words, namely inalienable and primary functions, and list the examples, which is what examiners expect.
Constitutional Tort
A distinct line of authority avoids the sovereign immunity question altogether. Where the act complained of infringes a fundamental right, compensation may be awarded in the exercise of writ jurisdiction under Arts.32 and 226 as a public law remedy, and sovereign immunity is no answer.
Facts: A young man taken into police custody was found dead on railway tracks the next morning with multiple injuries. His mother wrote a letter to the Supreme Court, which was treated as a petition under Art.32. The State pleaded that the remedy lay in a civil suit and that sovereign immunity applied.
Issue: Whether compensation may be awarded under Art.32 for a custodial death, and whether sovereign immunity is a defence.
Held: Compensation was awarded. A claim in public law for compensation for the contravention of a fundamental right is distinct from, and in addition to, the private law remedy in tort. It is founded on the State's strict liability for the contravention of guaranteed rights, and the defence of sovereign immunity is inapplicable to it, being confined to the old law of tortious liability. Art.32 and Art.226 include the power to award compensation, since without it the guarantee of enforcement would be a formality.
Relevance: The leading case on constitutional tort. The line of authority runs from Rudul Sah v State of Bihar (1983), through Bhim Singh v State of Jammu and Kashmir (1985), to D K Basu v State of West Bengal (1997) and Chairman, Railway Board v Chandrima Das (2000).
Why this route matters so much practically: It is immediate, requires no proof of a private law duty of care, and cannot be met by the sovereign function argument. Its limit is that it is available only where a fundamental right has been infringed, and typically where the violation is gross and the facts are not seriously in dispute. For ordinary negligence unconnected with a fundamental right, the claimant must still sue in tort and confront Art.300.
Illustrations
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Government vehicle negligently driven: A State driver negligently kills a pedestrian while returning a jeep from a workshop. Applying State of Rajasthan v Vidyawati (1962), the State is liable, the function being one any private employer might perform.
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Property seized and lost: Gold seized by police is misappropriated by the officer in charge. On Kasturi Lal (1965) no action lay; applying N Nagendra Rao (1994) the State is liable, since custody of seized property is not an inalienable primary function.
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Goods allowed to perish: Foodgrain seized under a control order deteriorates through negligent storage. The State is liable, the power of seizure carrying a duty to take reasonable care.
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Custodial death: A person dies in police custody. Compensation may be awarded under Art.32 or Art.226 on the Nilabati Behera principle, and sovereign immunity is no defence.
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Illegal detention: A person is kept in prison for years after acquittal. Applying Rudul Sah v State of Bihar (1983), compensation may be awarded in the writ jurisdiction itself.
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Assault by public servants on a foreign national: A foreign national is assaulted by railway employees at railway premises. Applying Chairman, Railway Board v Chandrima Das (2000), the State is vicariously liable and Art.21 protects non-citizens.
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Act of State: The Union enters into a treaty affecting private interests. Applying Secretary of State v Hari Bhanji (1882), an act of State done outside municipal law is not cognisable by the municipal courts at all.
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Quelling a riot: Damage occurs while police disperse a violent mob. This falls within maintenance of law and order in the strict sense, which N Nagendra Rao left within the residual immunity, though a claim would still lie if a fundamental right were violated by excessive force.
Recall Check
- What exactly does Art.300 provide, and why does it not itself answer the question of liability?
- What was the distinction drawn in P & O Steam Navigation, and on what feature of the East India Company was it based?
- State the test in N Nagendra Rao and the examples of functions it leaves immune.
Key Cases
Peninsular and Oriental Steam Navigation Co v Secretary of State for India (1861) P and O Steam Navigation Co v Secretary of State 1861
Issue: Whether the Government is liable for the negligence of its servants.
Rule: No action lies for acts done in the exercise of sovereign powers, but the Government is liable for acts done in undertakings which a private person might carry on.
Held: Liability was established, maintenance of a dockyard being a non-sovereign function.
State of Rajasthan v Vidyawati (1962) State of Rajasthan v Vidyawati 1962
Issue: Whether the State is vicariously liable for its driver's negligence.
Rule: In a welfare State the old immunity founded on feudal notions has no place where a private employer would be liable.
Held: The State was liable for the death caused by the negligent driving of its jeep.
Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh (1965) Kasturi Lal v State of UP 1965
Issue: Whether the State is liable for gold seized by police and misappropriated by the officer in charge.
Rule: Arrest, search and seizure are referable to the sovereign functions of the State, for which no action lies.
Held: The State was not liable, though the Court itself criticised the result and called for legislation.
N Nagendra Rao and Co v State of Andhra Pradesh (1994) N Nagendra Rao v State of AP 1994
Issue: Whether seizure under a statutory power attracts sovereign immunity.
Rule: The sovereign and non-sovereign distinction no longer holds; immunity survives only for inalienable and primary functions such as defence, foreign affairs, administration of justice, legislation and maintenance of law and order.
Held: The State was liable for the negligent custody of seized goods, and Kasturi Lal was held to have lost relevance.
Nilabati Behera v State of Orissa (1993) Nilabati Behera v State of Orissa 1993
Issue: Whether compensation may be awarded under Art.32 for a custodial death and whether sovereign immunity applies.
Rule: A public law claim for compensation for breach of a fundamental right is distinct from the private law remedy, and sovereign immunity is no defence to it.
Held: Compensation was awarded to the mother of the deceased in the writ jurisdiction itself.
Distinctions
| Basis | Sovereign function | Non-sovereign function |
|---|---|---|
| Test in 1861 | Acts done in the exercise of delegated sovereign power | Acts in undertakings a private person might carry on |
| Test after 1994 | Only inalienable and primary functions | Everything else the State does |
| Examples now immune | Defence, foreign affairs, administration of justice, legislation, maintenance of law and order in the strict sense | Transport, trade, storage, hospitals, custody of seized goods, industry |
| Liability | None | As for a private employer |
| Basis | Private law tort claim | Constitutional tort |
|---|---|---|
| Forum | Civil court by suit | Supreme Court or High Court under Art.32 or Art.226 |
| Foundation | Duty of care and vicarious liability, subject to Art.300 | Strict liability of the State for contravention of a fundamental right |
| Sovereign immunity | Available in principle, though much narrowed | Not available |
| Requirement | Proof of negligence and of the master and servant relationship | Infringement of a fundamental right |
| Measure | Full damages on ordinary principles | Compensation as a public law remedy, without prejudice to a suit for the balance |
| Leading case | N Nagendra Rao (1994) | Nilabati Behera (1993) |
Flashcards
What does Art.300(1) provide?
That the Union and the States may sue and be sued in the like cases as their predecessors might have done before the Constitution, subject to any law made by Parliament or a State Legislature.
Why does Art.300 not settle the law?
Because it merely preserves the pre-Constitution position and invites legislation which has never been enacted.
Which statutory provisions form the chain preserved by Art.300?
Section 65 of the Government of India Act, 1858, Section 32 of the Act of 1915, and Section 176 of the Act of 1935.
What distinction did *P & O Steam Navigation* (1861) draw?
Between acts done in the exercise of sovereign powers, for which no action lies, and acts in undertakings a private person might carry on, for which the Government is liable.
What did *Secretary of State v Hari Bhanji* (1882) hold?
That immunity is confined to acts of State done outside the sanction of municipal law.
What was held in *State of Rajasthan v Vidyawati* (1962)?
That the State was liable for its driver's negligence, the old feudal immunity having no place in a welfare State.
Why was the State held not liable in *Kasturi Lal* (1965)?
Because arrest, search and seizure by police were treated as referable to the sovereign functions of the State.
What test replaced the sovereign and non-sovereign distinction in *N Nagendra Rao* (1994)?
Immunity survives only for functions that are inalienable and primary.
Which functions did *N Nagendra Rao* identify as remaining immune?
Defence of the country, conduct of foreign affairs, administration of justice, making of laws, and maintenance of law and order in the strict sense.
Is sovereign immunity a defence to a claim of constitutional tort?
No. Nilabati Behera v State of Orissa (1993) held it inapplicable to a public law claim for breach of a fundamental right.
Name the principal cases in the constitutional tort line.
Rudul Sah (1983), Bhim Singh (1985), Nilabati Behera (1993), D K Basu (1997) and Chandrima Das (2000).
Does a public law award of compensation bar a civil suit?
No. It is in addition to the private law remedy, and any balance may be pursued by suit.
Exam Scenario
Problem: Officers of a State Food Department seize 200 tonnes of rice from Ratan, a licensed dealer, under a control order. The rice is stored in an open yard, is spoiled by rain, and the confiscation proceedings are eventually dropped. In the course of the same raid, Ratan is taken to the police station, beaten, and dies in custody the following morning. His son sues the State for the value of the rice and also petitions the High Court for compensation for the death. The State pleads sovereign immunity to both claims, relying on Kasturi Lal. Advise.
Step 1: Start with Art.300 and meet the immunity plea on its merits
Art.300 preserves the pre-Constitution position on suits against the State. The sovereign immunity plea must therefore be addressed on its merits rather than dismissed at the threshold.
Step 2: Displace Kasturi Lal with N Nagendra Rao on the rice
| Case | Facts | Holding |
|---|---|---|
| Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh (1965) | Gold seized under statutory power and lost | Seizure treated as a sovereign function, the loss went uncompensated. The State's best case |
| N Nagendra Rao and Co v State of Andhra Pradesh (1994) | Foodgrain seized under the Essential Commodities Act, negligent storage, deterioration, confiscation dropped | The sovereign and non-sovereign distinction no longer holds good |
Nagendra Rao is on all fours with Ratan's case. Immunity survives only for inalienable and primary functions, and storing seized goods is not among them. A statutory power of seizure carries a duty to take reasonable care of what is seized, and Kasturi Lal was expressly held to have lost relevance.
Reinforce with State of Rajasthan v Vidyawati (1962), on the general proposition that the old immunity has no place where a private person would be liable. A rule under which the victim of a badly driven jeep recovers, while the victim of official negligence in the custody of goods does not, is incoherent.
The State is liable for the value of the rice.
Step 3: Separate the death claim and take it into public law
Applying Nilabati Behera v State of Orissa (1993), a claim in public law for compensation for contravention of a fundamental right is distinct from and additional to the private law remedy. It rests on the State's strict liability for the breach, and the defence of sovereign immunity is simply inapplicable to it.
Art.226 accordingly includes the power to award compensation, without which the guarantee of enforcement would be a formality.
Step 4: Argue the death claim in this order
- Nilabati Behera: public law compensation on strict liability, immunity inapplicable, the power residing in Art.226.
- The right violated here is Art.21.
- Custodial death engages the guidelines in D K Basu v State of West Bengal (1997).
- On the pattern of Bhim Singh v State of Jammu and Kashmir (1985), the Court may award compensation summarily where the facts are not seriously in dispute.
- The award does not bar a civil suit for the balance.
Do not dismiss the immunity plea at the threshold. Art.300 preserves the pre-Constitution position, so the plea has to be answered on its merits.
Kasturi Lal is the State's case, not yours. State it at its best and then displace it with Nagendra Rao, which is factually identical: seizure of foodgrain, negligent storage, deterioration, failed confiscation.
Immunity is confined, not merely narrowed. After Nagendra Rao it survives only for inalienable and primary functions. Custody of seized goods is not one of them.
Keep the two claims apart. Sovereign immunity has no application at all to a constitutional tort, so the death claim is not answered by arguing about sovereign and non-sovereign functions.
The public law award is not exhaustive. Compensation under Art.226 does not bar a civil suit for the balance.
Conclusion. The plea of sovereign immunity fails on both claims: on the rice because the function is not inalienable and primary, and on the death because the immunity has no application to a constitutional tort at all. Ratan's son recovers the value of the rice, and compensation for the death in public law under Art.226.
See Also
- Liability of the State in Contracts : the companion head of State liability, governed by Arts.298 to 300.
- Supreme Court: Powers and Jurisdiction : the writ jurisdiction through which constitutional tort compensation is awarded.
- Services under the State and Public Service Commissions : the position of the servants whose acts give rise to vicarious liability.