The liability for a wrong committed by others is called vicarious liability, and according to Jowitt, Dictionary of Law, “a Vicor is the one who performs the functions of another and he/she acts as a substitute for the party who did commit the wrong.” In simple words, vicarious liability arises and is imposed on the person with authority or any kind of command over the person who committed the wrongful act, and this is how the vicarious liability turns into a secondary liability. The liability of the state is defined under Article 300 of the Constitution of India.

  • Unwinding the past

The vicarious liability of the state will be defined via a timeline of various cases throughout the history of India. The case of Peninsular and Oriental Steam Navigation Company V. Secretary of State for India, in which case the maintenance of the dockyard was considered to be a non-sovereign function and the government of that time was held liable. According to Peacock, C.J., the East India Company was a company that was supplemented with sovereign power and traded for their benefit. They were engaged in the transaction only partly for the government. In 1935, the then-colonial government came up with the Government of India Act, in which Section 176 recognized the position prevailing before the passing of the act. The state was exempted from liability when the function was considered a sovereign one.

Rup Ram V. The Punjab State saw the court giving a decision in which it stated that the state is liable for all cases except for “Acts of State” and that the state’s liability is held exactly similar in extent and nature to that of an employer, respectively. The Vidyawati V Lokumal, which is popularly known as the Peninsular Case, stated that in that state there is no valid reason why it should not be treated like any other ordinary employer.

The need to understand the distinction between acts done by the government and its employees in the exercise of their power and acts which could have been committed by private players is important while understanding the acts of police officials and military servants. Because there is no hard and fast rule for this, the answer will be determined solely by the facts and interpretation of the case. Whereas the acts were done in the exercise of non-sovereign power, it was held that the government was liable to pay compensation to the ones to whom they had caused harm. This was discussed in various cases over time, and a few of them were Nandram Heeralal V. Union of India and Union of India V. Abdul Rehman.

Unlike England, Indian law has turned the tort committed while one is performing the discharge of obligations imposed into defense by law. The crux of the issue lies in the fact of whether the tortious act committed by the public servant comes under the delegation of sovereign authority and power or was just because of the public servant’s motive or mistake. The government is not liable when the act is done under the power of the sovereign authority. When an officer is in the exercise of statutory powers, which can be categorized as sovereign powers, then the State will not be liable for the same.

  • Loss to property

When state officials have possession of the property, then there is deemed to be a property bailment, and the bailee, which is the state, in this case, has to be held either to return the property which was in his/her possession or pay an equivalent sum to the bailor, who is bound to receive compensation for the damage incurred. In the State of Gujarat v. Memon Mahomed, the government was bound to return the property to the actual owner, and if the government fails to do so, then it will be its duty to compensate the party for the same.

  • In the case of electrocution

Electrocution occurs when a person falls on a live electric post by mistake or while hooking up an illegal connection from the electrical lines. The Board of Electricity is bound to pay damages to the person who suffered an injury. The court has upheld this decision in cases like P. Ramudu V. Supdt. Engineer, A.P.S.E.B., where they had to pay damages worth Rs. 94,000 as compensation. Stopping people from breaking the law and stopping them from preventing the misuse of electricity is seen as the duty of the electricity board, and since they were unable to prevent it, they had to pay compensation.

The state also becomes liable when the department of road construction neglects its duty to maintain the roads, as can be seen in the cases of Chitrachary V. Delhi Development Authority.

To succeed in a claim for damages caused to one’s property, a person has been infringed upon the right of livelihood, which needs to be claimed for and compensated against.


There is an unsatisfactory state of affairs present today since the recommendations of the 1956 Law Commission Report have still not been taken into account or have been practiced. The courts at the moment have absent legislation and it will align with social justice as demanded by the changed conditions and the coming up of the concept of the modern welfare state. In India, even today, there is no clear-cut law dealing with the vicarious liability of the state. Article 300 of the Constitution of India specifies that the Union of India – Bharat or the Government of the State can sue and be sued like any ordinary private person in its legal capacity. But apart from this, the discretion of the court matters from case to case, even today and the need for laws and guidelines is the necessity of the hour.

Author’s Name: Charu Kohli (Vivekananda Institute of Professional Studies, Delhi)

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