According to Article 300 of the Constitution of India the Union of India and the State Government  can sue or be sued in the like cases as the dominion of India and the corresponding  Indian states might have sued or been sued if the constitution had not been enacted.  To know he present position as regard to the liability of the State of tortuous act we have to go back to the pre constitutional days.

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For that we can refer to section 176 of the Government of India Act, 1935. That act like the present Constitution, does not give the circumstances of the Government‘s liability but recognizes the position prevailing before the passing of that act. In this connection an important case is Peninsular and Oriental Steam Navigation Company V. Secretary of State for India[1] where the Ld.

Court tried to draw a distinction between the sovereign & non- sovereign function of the East India Company while discharging their liabilities. Here the Government held responsible for its non-sovereign functions only & exempted from liability when the function is considered to be a sovereign one. But later on in a series of cases like P.V. Rao V. Khushal Das[2], Vidyabati V. Lokumal[3], Kasturilal V. State of U.P.[4] etc. it was decided that the doctrine of Sovereign immunity has no relevance in present day and the State is vicariously liable for the torts of its servants, except when an act done is an “Act of State”. Act of State is a defence which the State cannot have against its own subjects. Therefore the State is liable just like an ordinary employer in this regard.

[1] (1861) 5 Bom. HCR App . 1

[2] (1949) Bom. 227

[3] AIR 1957, Raj 305

[4] AIR 1965, SC 1039

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Indian Institute of Legal Studies



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