Evolution of State Liability in India - A Need of a Progressive Nation

The concept of State Liability is one of the most useful aspects of law of tort where the victims can claim damages from the State due to the loss incurred by them from the act of the State while performing its functions. Pre-British India was the era where predominance was given to the ‘Rule of Law’ and the King was not above law. In British India the doctrine of ‘King can do no wrong’ was adopted. The position of tortuous liability of the State in Independent India is quite similar to what was there under the Crown as Indian Constitution is mostly based on the Government of India Act 1935. So, as it prevailed in British India, the State was started to be given immunity from tortuous liability in Sovereign functions and were held liable as a corporate body if the wrong was committed while performing non-sovereign functions. Now, as there was no clear definition of sovereign functions and non-sovereign functions, the question was left to be decided by the judiciary which had to first decide the nature and type of function that the alleged servant of the State was discharging when the wrong was committed. These in turn gave rise to conflicting decisions in the past. With the passage of time the welfare activities of the State started increasing and with this it became difficult to differentiate the functions of State as Sovereign or Non-Sovereign. Moreover, for the ends of justice the Indian courts made a constant effort to overcome this fallacy of ‘Sovereign Immunity’ by giving decisions where extreme efforts are evident at their end to exclude the alleged act from the realm of sovereign function. This paper analyses both the past and contemporary judgements to study the present position of tortious liability of State under the Constitution of India.