The provisions of Art. 300 of the Constitution are not wholly out of the way for determining the liability of the State. The State can be liable for the tortuous act of its servants when such servants are engaged in an activity connected with the affairs of the State.
In this connection, it has to be remembered that under the Constitution we have, established a welfare State whose functions are not confined only to maintaining law and order but extend to engaging in all activities including industry, public transport, State trading, etc.
In so far as the State activities have such wide ratifications involving not only the use of sovereign powers but also its powers as employers in so many public sectors, it is too much to claim that the State should be immune from the consequences of the tortuous acts or its employees committed in the course of their employment as such.
i.ytimg.com
ADVERTISEMENTS:
In this respect, the present set up of the Government is analogous of the position of the East India Company which functioned not only as a Government with the sovereign powers as a delegate of the British Government but also carried on trade and commerce, as also public transport like Railway, Post and Telegraph and Road transport business.
The State is liable for the damages occasioned by the negligence of the servants in service of the Government if the negligence is such as would render an ordinary employer liable.
The State is as much liable for tort in respect of a tortuous act committed by its servants within the scope of his employment and functioning as such as any other employer.
ADVERTISEMENTS:
The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one and that he could not be sued in his own Courts.
In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated a Republican form of Government and one of the objectives to establish a socialistic State with its varied industrial and other activities employing a large army of servants, therefore, no justification in principle or in public interest, that the State should not be held liable vicariously for the tortuous act of its servants.