Limitations of Personal Capacity in Torts.pptx

Law of Torts: Common Law System

1. Limitations of Personal Capacity/Personal Capacity Under Law of Torts

2. MC Naughten Rules

3. Who Cannot Sue? And Who Cannot be Sued? All persons have the capacity to sue and be sued in tort. This, however, is a general rule and is subject to modification in respect of certain categories of persons. CONVICTS AND PERSONS IN CUSTODY : Original Position under UK Legal System Under the Forfeiture Act, 1870, 'a convict whose sentence was in force and unexpired, and who was not "lawfully at large under any license" could not sue for an injury to his property, or for recovery of a debt. This disability has been removed by the Criminal Justice Act, 1948.

4. Current Position Under UK Legal System: Under the English law , a convicted person, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. The conviction and sentence by a court and rules of prison discipline curtail the liberty of a convict , but, subject to that curtailment, the courts remain the ultimate custodians of his rights and liberties in the same manner as they are in respect of other citizens. Thus, a convict can, therefore, under English law sue for wrongs to his person and property like any other citizen

5. UK

6. The Indian law is the same . That means the Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. In Sunil Batra v Delhi Administration (1978) S.C has ruled that conviction of a person, does not draw any iron-curtain between him and his rights and he is not reduced to a nonperson . Therefore, the Convicts or person in custody is competent to sue. However, as matter of legal force and compliance and compulsion under the authority of law, following upon conviction , he is suppose to live in a prison house, which results in deprivation of certain fundamental freedoms like the rights to move freely throughout the territory of India or the right to practice a profession. Thus, a man would be stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which detention can be no impediment .

7. Likewise, a prisoner or even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law. A convict can, therefore, sue in tort for vindication of his right which is invaded by a tortious act committed by another . In R. v. Deputy Governor of Parkhurst Prison, (1990) 3 All ER 687, p. 709(CA). Held that a convict can sue for battery or assault if prison authorities apply excessive force to enforce prison discipline or apply force for an improper purpose. In Smt. Kewal Pati v. State of U.P., (1995) 3 SCC 600 : (1995) In this case a convict was attacked by another convict in Jail and killed due to failure of Jail authorities to protect him. In a petition under Article 32 of the Constitution by the dependents of the deceased they were awarded One Lakh as compensation against the state for violation of the fundamental right of life protected under Article 21.

8. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284 : AIR 2005 SC 972 Held that a Member of Parliament as an under trial prisoner is not above the law and is subject to jail discipline. Court further stated that if member of Parliament won the election contesting from jail he can be allowed to take oath as M.P. but he has to be brought back to jail after taking oath

9. 2. ALIEN ENEMY: English Position: In Scotland v. South African Territories (Limited), (1917) 33 TLR 255. The term “Alien Enemy” has defined in this as “Alien Enemy” is a person of enemy nationality or a person residing in or carrying on business in enemy territory, whatever his nationality. In Porter v. Freudenberg, (1915) 1 KB 857, p. 869; Court observed that Even a British subject residing voluntarily or carrying on business in enemy territory is in the same position as a subject of hostile nationality and he will be treated as an alien enemy . In De Wahl v. Braune, (1856) 1 H&N 178. Held that a n alien enemy cannot sue in his own right . He cannot maintain an act unless by virtue of an Order in Council, or unless he comes into the British Dominions under a flag of treaty, a alliance, a pass, or some other act of public authority putting him in the King's peace.

10. Daimler Co Ltd vs. Continental Tyres & Rubber Co Ltd. [(1916) 2 A.C. 307] A Germany based company was incorporated in England to sell tyres manufactures in Germany. The German company had however held the bulk of shares in this English company. All the members and directors except one were German Nationals . As World War I broke out, the English company commenced an action to recover trade debt. The question was brought before House of Lords which decided the case against the claimant, stating that, company is not a real person but a legal entity, it cannot be a friend or an enemy . However, it may assume an enemy character when persons in de facto control of it’s affairs are residents of the enemy territory. In Johnstone v. Pedlar , (1921) 2 AC 262 : 37 TLR 870 : 90 LJPC 181 : 125 LT 809. An alien enemy residing within the territory by the express or implied license of the Crown is temporarily free from his enemy character and can invoke jurisdiction of courts.

11. Indian Position: Similar principles, it would seem, apply in India. Since, the residence in enemy territory is the real test, even a citizen of India resident there will fall within the description. As per Sec. 83. Civil Procedure Code 1908, Alien enemies residing in India with the permission of the Central Government , and alien friends, may sue in any court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such court. Explanation to Sec. 83 Civil Procedure Code and its interpretation in Manaseeh Film Co. v. Gemini Picture Circuit, AIR 1944 Held : Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a license on that behalf granted by the Central Government is deemed to be an alien enemy residing in a foreign country.

12. 3. HUSBAND AND WIFE: Common Law Position: Initially under English law husband and wife both were constituted one person in the eye of law, this notion was used to reduce the wife to a subordinate position in comparison with husband. The common law relating to married women suffered from serious anomalies. A married woman could not sue for any tort committed by a third person unless her husband joined with her as plaintiff. She could also not be sued for a tort committed by her unless her husband was made a defendant. Further, she could not sue her husband and the husband could not sue her for any tort committed by one against the other.

13. These anomalies have been by and large removed by legislation: - By the Married Women's Property Act, 1882 and -the Law Reform (Married Women and Tortfeasors) Act, 1935, Now married woman can sue for any tort committed by a third person and can also be sued for any tort committed by her without joining her husband who cannot be made liable or made party to a suit simply because he is the husband. Finally, by the Law Reform (Husband and Wife) Act, 1962, each of the parties to a marriage has the same right of action in tort against the other as if they were not married but the court has a discretion to stay the proceedings to prevent them from using it as a forum for trivial domestic disputes without any chance of substantial benefit to either of them.

14. Indian position: Marital status of Hindus, Buddhists, Sikhs, Jains P arsis and Muslims in India is governed by their personal laws and not by the common law. Neither does marriage under these personal laws affect the capacity of the parties for suing or for being sued, nor does it confer any protection to any of the spouses for any tortious act committed by one against the other As regards other persons, e.g., Christians who in respect of the marital status may have been subject to the common law, the anomaly to some extent was removed by the Married Women's Property Act, 1874 , under which a married woman to whom the Act applies can sue or be sued alone.

15. I n Ajay Hasia V. Khalid Mujib , AIR 1981 SC 487 Court observed that even if there was ever any anomaly in the Indian law similar in any manner to those in the common law , it could not survive due to the impact of the Constitution which, under Article 14 , which embodies a guarantee against arbitrariness and unreasonableness. In Church v. Church, (1983) 133 NLJ 317. The court ruled that the legal position, therefore, appears to be that marriage has no effect on the rights and liabilities of either of the spouses in respect of any tort committed by either of them or by a third party. The wife can sue the husband for any tort committed by him against her and the husband can sue the wife for any tort committed by her against him.

16. 4. CORPORATION: A Corporation is a legal person. It may, like the State Bank of India, a University or a Metropolitan Council, be created by an Act of the legislature; or it may, like a company be created under an Act of the legislature. The common features of Corporations are a Independent corporate existence, name, perpetuity of existence, capacity to sue and be sued etc. Suits by Corporations. —A Corporation cannot obviously bring a suit for torts which are only wrongs against living persons, e.g., assault and false imprisonment. In Bognor Regis. UDC v. Campion, (1972) 2 QB 169. Court observed that the corporation cannot also sue for a tort committed essentially against its shareholders or employees unless the tort also some impact on the governance or business or property of the Corporations. This is for the reason that a Corporation's personality is different and distinct from the individuals constituting it and the employees acting for it.

17. In Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674. Subject to these general reservations, a Corporation can sue for torts committed against itself. Thus a Corporation can thus sue for malicious presentation of a winding-up petition or a libel charging it with insolvency or with dishonest or incompetent management. In Mayor etc. of Manchester v. Williams, (1891) 1 QB 94. It was held that a Corporation cannot maintain an action for libel charging it with corruption because it is only individuals and not the Corporation who can be guilty of such an offence. In Derbyshire County Council v. Times News Papers Ltd., (1993) 1 All ER 1011, Court observed that the, certain authorities are of the that this view is erroneous and that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business.

18. Suits Against Corporations .— LORD BRAMWELL in Abrath v. North Eastern Railway Co., (1883) 11 App. Cas 247 : 55 LT 63. The existence and extent of the liability of a corporation in actions of tort were at one time a matter of doubt , due to partly technical difficulties of procedure and partly to the theoretical difficulty of imputing wrongful acts or intentions to fictitious persons. In Criminal Justice Society v. Union of India, AIR 2010 Del 194. While deciding the Public Interest Litigation, the Delhi High Court has retreated the principle laid down in Mersey Docks Trustees v. Gibbs, (1866) 1 LRHL 93 and awarded compensation to a widow , whose husband succumbed to injuries as a result of falling in a pit on the road which was meant to be covered by the Municipal Corporation. On account of negligence, the Municipal Corporation was held liable for the acts of its agents .

19. -Court further observed that the corporation is undoubtedly liable for torts committed by its agents or servants to the same extent as a principal is liable for the torts of his agent or an employer for the torts of his servant, when the tort is committed in the course of doing an act which is within the scope of the powers of the corporation . It may thus be liable for trespass, conversion, libel or negligence. In Stevens v. Midland Counties Ry. Co., (1854) 10 Ex. 352. Court observed that it was thought at one time that a corporation could not be held liable for wrongs involving malice or fraud on the ground that to support an action for such a wrong it must be shown that the wrong-doer was acted with ulterior motive in his mind and that "a corporation has no mind".

20. However, the alter ego doctrine developed later has solved the difficulty. The doctrine of alter ego is based on the assumption that the corporation as well as the shareholders and the managing directors are the alter egos of each other, i.e., one is the shadow or reflection of the other or can be understood as two sides of the same coin. Hence, the courts can rely on alter ego doctrine when they find that there is a very thin line of distinction between the shareholders/ directors and the corporation or a limited liability corporation. In Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., (1915) AC 705, p. 713 : 113 LT 195(HL). In the words of Viscount Haldane LC: "A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; it’s active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation."

21. Lord Denning, J. in the case of  H L Boulton (Engineering) Co. Ltd v. T J Graham and Sons Ltd (1956) 3 All E.R. 624 Observed : “a company in many ways may be linked to a human body. It has a brain and a nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such."

22. In Tesco  Supermarkets Ltd. v Nattrass 1971) 2 All E.R. 127 The House of Lords further stated that the basis of the doctrine of alter ego is that a living person has a mind which can have knowledge or intention or be negligent and has hands to carry out his intentions. Whereas, a corporation has none of these it must act through living persons. In such a situation, person who acts is not speaking or acting for the company, but as the company itself. He does not act as a servant, representative, agent or delegate. If his mind is a guilty mind, then that guilt is the guilt of the company.

23. Meridian Global Funds Management Asia Ltd. v. Securities Commission, (1995) 3 All ER 918 By applying this doctrine of attribution same has further explained by the Privy Council, a company may be held liable for the fault of an employee acting in the course of employmen t even though the employee acted contrary to the orders of the company or with a corrupt purpose . It is now settled that a corporation is liable for wrongs even of malice and fraud. Whitfield v. South Eastern Railway Company, (1858) El B1&E1115 Observed that the corporation may be sued for malicious prosecution or for deceit. It is also settled that an action for a wrong lies against a corporation where the thing done is within the purpose of the incorporation, and it has been done in such a manner as to constitute what would be an actionable wrong if done by a private individual.

24. There is a difference of opinion on the question whether a corporation is liable for a tortious act of its servants which is ultra vires the Corporation. One view is that the corporation is not liable the reasoning being that the corporation could not have empowered the servant to do an act which it itself has no power to do. This view was taken at a time when the basis of vicarious liability was thought to be an "implied authority" of the master for doing the tortious act. It is now accepted that the real test for determining the master's vicarious liability is not the existence of any implied authority but the commission of the tort by the servant " in the course of employment".

25. The prevailing view, therefore, is that a corporation is vicariously liable for a tortious act of its’s servants even though it is ultra vires provided it is done in the course of employment . Apart from vicarious liability, a corporation will be directly liable for a tortious act, even if it is ultra vires its powers, if it is authorized or ratified by those who constitute the "directing mind and will of the corporation .” In Campbell v. Paddington Corporation (1911) 1 KB 869 : 104 LT 39 -a bus stand was erected in a highway in pursuance of a resolution passed by the Borough Council which constituted a public nuisance and which the corporation had no power to erect. -In a suit by a person who suffered special damage the corporation was held liable as the act was authorized by its council.

26. -Court further observed that "To say that, because the Borough Council had no legal right to erect it, therefore, the corporation cannot be sued, is to say that no corporation can ever be sued for any tort or wrong. -The only way in which this corporation can act is by its council, and the resolution of the council is the authentic act of the corporation . If the view of the defendants were correct no company could ever be sued if the Directors of the Company after resolution did an act which the Company by its Memorandum of Association had no power to do”

27. Indian Position Sunil Bharti Mittal v Central Bureau of Investigation AIR 2015 SC 923 Supreme Court observed that the "No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so."

28. 5.UNINCORPORATED ASSOCIATIONS Unincorporated Associations have no corporate existence and are not legal persons. Brown v. Lewis, (1896) 12 TLR 455 and Bradley Egg Farm Ltd. v. Clifford, (1943) 2 All ER 378 Court ruled that they cannot, speaking generally, sue or be sued in their name. Any member or officer of such an association has to be sued personally for tort committed by him or authorized by him . 'The provisions of Order I, Rule 8 of the Code of Civil Procedure, 1908, may be availed of if all the members or a number of them have to be sued.

29. A partnership firm though not a legal entity can sue or be sued in the firm name under Order XXX of the Code of Civil Procedure. An association which is registered as a society under the Societies Registration Act, 1860 can, as provided in Section 6 of the said Act, sue or be sued in the name of its President, Chairman or Principal Secretary, etc., as may be determined by its rules or regulations. by a resolution of the Governing Body when there is no provision on that point in the rules or regulations.

30. 6. Insolvent Person: Liability for a tort committed by an insolvent is not a debt provable in insolvency and is not discharged by insolvency. An insolvent may be sued for a tort committed by him either before or during insolvency, and if a decree is obtained against him, the amount awarded is a debt provable in insolvency. As regards torts committed against an insolvent, a distinction is to be drawn between torts to the person and torts to property . A right of action in respect of a tort resulting in injury exclusively to the insolvent's property passes to the Official Assignee or Receiver for the benefit of his creditors.

31. In Howard v. Crowther, (1841) 8 M&W 601 Court held that the right of action in respect of a tort exclusively to the person, reputation or feelings of the insolvent, such as an assault or defamation, seduction of a servant, remains with the insolvent , and the Official Assignee or Receiver cannot seize the proceeds so far as they are required for the maintenance of the insolvent or his family. Beckham v. Drake, (1849) 2 HC 579, 632. Court ruled that where a tort causes injury both to the person and property of the insolvent , the right of action will be split and will pass, so far as it relates to the property, to the Official Assignee or Receiver, and will remain in the insolvent so far as it relates to his person .

32. Wilson v. United Counties Bank, (1920) AC 102 : 122 LT 76. In this case court retreated the principle laid down in Beckham v. Drake held that the cause of action shall be divided between insolvent and the trustee or Official Assignee or Receiver, or they may join together in one action in which case damages will be assessed under two separate heads and the responsibility will be fixed independently in respect with the torts to Insolvents Person and his Property.

33. Who Cannot be Sued? 1. FOREIGN SOVEREIGNS: Common Law Position: Mighell v. Sultan of Johore, (1894) 1 QB 149; Held: English courts have no jurisdiction over an independent foreign sovereign personally and the properties of a foreign sovereign State unless they submit to the jurisdiction of the Court . For this purpose all sovereigns are equal.

34. De Habar v. The Queen of Portugal, (1851) 17 QB 171 Held: The independent sovereign of the smallest State stands on the same footing as the monarch of the greatest. No Court can entertain an action against a foreign sovereign for anything done, or omitted to be done, by him in his public capacity as representative of the nation of which he is the head. Mighell v. Sultan of Johore, (1894) 1 QB 149. Held: Mere residence in a foreign territory does not lead to a waiver of immunity or submission to the jurisdiction of the local Courts.

35. As a consequence of the absolute independence of every sovereign authority and of the international community which induces every sovereign State to respect the independence of every other sovereign State. Every nation in general avoids to exercise by means of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other State , or over the public property of any State which is intended to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property, be within its territory, and therefore, but for the common agreement, subject to its jurisdiction. Munden v. Brunswick, (1847) 10 QB 656. Held: sovereign immunity may not be available upon termination of sovereign status, e.g., relinquishment of sovereign immunity or retirement or waiver etc.

36. Unlike Great Britain, most countries did not accept the doctrine of absolute immunity. The absolute immunity doctrine was producing great injustice in the changed conditions wherein sovereign States are more and more indulging in commercial and trading activities. The English courts, therefore, felt the necessity of taking more restricted view of sovereign immunity. The Privy Council in Philippine Admiral v. Wallen Shipping Ltd ., (1976) 1 ALL ER 78 (PC). Abandoned the absolute theory and applied the restrictive approach in respect of actions in rem observing that the trend of opinion in the world since the world wars has been increasingly against the application of the doctrine of sovereign immunity to ordinary trading transactions.

37. In Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, (1977) 1 All ER 881 The Court of Appeal under the leadership of Lord Denning applied the restrictive approach to the actions in personam holding that there is no ground for granting immunity if the dispute concerns commercial transactions of a foreign State. Finally the House of Lords in The Congreso Del Partido (1983) AC 244 (HL); and Holland v. Lampen Wolfe, (2000) 3 All ER 833, Approved the restrictive theory requiring the court to analyze the nature of the obligation and breach in question to decide whether it pertained to private law or was of "Governmental" character . Parliament has also intervened by enacting the State Immunity Act, 1978 which applies to causes of action arising after November 21, 1978.

38. The immunity under the Act covers proceedings which relate to anything done in the exercise of "sovereign authority". Acts done under statutory authority are thus not protected. Trading transactions are not protected under the Act. what is more important for our purposes is that immunity does not apply to: (a) an action or omission in U.K. causing death or personal injury; and (b) obligations arising out of the ownership, possession or use of property in U.K.

39. Indian Position: In India as provided in Sec. 86 of the Code of Civil Procedure a foreign State cannot be sued except with the consent of the Central Government certified in writing by a Secretary to that Government. A tenant of immovable property can, however, sue without such consent the foreign State from whom he holds or claims to hold the property. Consent to sue cannot be given unless it appears to the Central Government that the foreign State: has instituted a suit in the court against the person desiring to sue it, or by itself or another, trades within the local limits of the jurisdiction of the court, or is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or (d) has expressly or impliedly waived the privilege accorded to it.

40. The immunity under section 86 also covers foreign corporations which are state owned and are like government departments even though they carry on commercial or trading activities. In Department of the German Democratic Republic v. New Central Jute Mills Co. Ltd., AIR 1994 SC 516 : (1994) 1 SCC 282 . -considering the modern trend of taking a restricted view of State immunity the Supreme Court has ruled that consent to sue should generally be granted if conditions mentioned in the section are satisfied.

41. 2. AMBASSADORS Diplomat, Ambassador, High Commissioner, Consulate General, Embassy, High Commission, Consulate International Conventions: Vienna Convention on Diplomatic Relations, 1961 - Art. 29: Diplomats not liable to arrest or detention –also immune from civil or criminal prosecution except where sending country waives this Vienna Convention on Consular Relations, 1963 - Art. 41: Consular officers not liable to arrest/detention during pending trial – except in case of grave crime & pursuant to decision by competent judicial authority English Position: -The law on the privileges and immunities of diplomatic representatives in the United Kingdom is contained in the Diplomatic Privileges Act, 1964, which gives the force of law to the relevant provisions of the Vienna Convention on Diplomatic Relations, 1961.

42. Indian Position -In India, any Ambassador or envoy of a foreign State, any High Commissioner of a Commonwealth country and any such member of their staff, as the Central Government may specify , cannot be sued except with the consent of the Central Government certified in writing by a secretary to the Government Harbhajan Singh Dhalla v. Union of India, AIR 1987 SC 9 Supreme Court ruled that the provisions of section 86 of the Code of Civil Procedure apply in this respect as they apply in relation to a foreign State and permission to sue can be granted on grounds on which a foreign State can be allowed to be sued.

43. 3. TRADE UNIONS English position: The English law in the context of trade unions gave recognition to a theory that there may exist a legal entity without any corporate existence . In Taft Vale Ry. v. Amalgamated Society of Railway Servants, (1901) AC 426 -It was also held that a registered Trade Union has a right to sue National Union of General and Municipal Workers v. Gillan , (1946) KB 81 : (1945) 2 All ER 593; Sec. 2(1) of the Trade Union and Labour Relations Act, 1974 provides that a Trade Union shall not be treated as a corporate body though it can sue or be sued in its name. After this legislation it has been held that a trade union has no sufficient personality to be a plaintiff in a libel action

44. St. Helens Ltd. v. Transport and General Workers Union, (1973) AC 15 : (1972)3 WLR 431 House of Lord observed that a registered trade union, though not a corporate body was a legal entity , and could be sued in tort for the wrongful acts of its officers. In Bonsor v. Musicians Union, (1956) AC 104(HL). In this case an action by a member against a trade union for wrongful expulsion was upheld on the ground that the trade union was a legal entity distinct from its members.

45. Indian Position: The Indian Law on this point presents no such anomaly, section 13 of the Trade Unions Act, 1926, expressly provides that every registered Trade Union shall be a body corporate with all attributes of a legal personality. Section 18 of the Act, however, states that no suit shall lie against a registered Trade Union, or Against its members or officers in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union was a party on the ground only that such act induces some other person to break a contract of employment, or that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or labour as he wills.

46. 4. FOREIGN STATE: A foreign state cannot sue in any Court of India unless such State has been recognized by the Government of India. As per Section 87A (1) (a), CPC “ Foreign State ” means any State outside India which has been recognized by the Central Government. As per Section 84, CPC a foreign state may sue in any competent court: provided that the object of the suit is to enforce a private right vested in the ruler or such state or in any officer of such State in his public capacity. [ As per Section 87A (1) (b) CPC “ Ruler ” , in relation to a foreign State, means the person who is for the time being recognized by the Central Government to be the head of that state. ]

47. The private rights spoken of in this section does not mean individual rights as opposed to those of the body politic but those private rights of the State which must be enforced in a Court of Justice as distinguished from its political or territorial rights which must, from their very nature, be made the subject or arrangement between on e State and another. Mirza Ali Akbar v. United Arab Republic, AIR 1966 SC 230, It was held by the Supreme Court that ‘private rights’ means rights which may be enforced by a foreign state against private individuals as distinguished from rights which one State in its political capacity may have as against another State in it s political capacity.

48. 4 . THE STATE AND ITS OFFICERS: Position Under English Law: Original/ Orthodox Approach: The fundamental principle of the English law was based on the maxim “ King can do no wrong” Rex Non Potest Peccare As per the maxim King is not liable to be sued civilly or criminally for a supposed wrong. In Tobin v. The Queen, (1864) 16 CB(NS) 310, 354. Court observed : “That which the sovereign does personally, the law presumes will not be wrong; that which the sovereign does by command to his servants, cannot be a wrong in the sovereign because, if the command is unlawful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command".

49. In Canterbury (Viscount) v. A.H. General, (1842) 1 Ph 306 Court had applied the maxim King Can Do No Wrong and held that the Crown was not liable in tort at common law for wrongs committed by its servants in the course of employment not even for wrongs expressly authorized by it . In Raleigh v. Goschen , (1898) 1 Ch 73 : 77 LT 429; Court ruled that the heads of the department or superior officers could not be sued for torts committed by their subordinates unless expressly authorized by them.

50. Modern Approach: The increased activities of the Crown have now made it the largest employer of men and the largest occupier of property. The above system was, therefore, proving wholly inadequate and the law needed a change which was brought about by the Crown Proceedings Act, 1947 . Nothing in the Act authorizes proceedings in tort against the Crown in its private capacity (s. 40), or Affects powers or authorities exercisable by virtue of the prerogative of the Crown or conferred upon the Crown by statute (s.11(1)).

51. Subject to the Act provisions under this Act, the Crown shall be subject to all those liabilities in tort to which, if it were committed by a person of full age and capacity. Liability in tort extends to breach by the Crown of a statutory duty. It is no defence for the Crown that the tort was committed by its servants in the course of performing or purporting to perform functions entrusted to them by any rule of the common law or by statute. The law as to indemnity and contribution as between joint tort- feasors shall be enforceable by or against the Crown and the Law Reform (Contributory Negligence) Act, 1945, binds the Crown.

52. Crown Proceedings Act preserves the immunity of the Sovereign in person and contains savings in respect of the Crown's prerogative and statutory powers . The effect of the Act in other respects, resulted into the abolition of the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability. The Crown is now vicariously liable for torts committed by its servants in the course of their employment if committed in circumstances which would render a private employer liable. Thus in Home Office v. Dorset Yacht Co., (1970) 2 All ER 294(HL) the Crown was held liable for the damage caused by runaway borstal trainees who escaped because of the negligence of the borstal officers in the exercise of their statutory function to control the trainees.

53. Position Under Indian Law: Historical Background: The maxim that the King can do no wrong and the resulting rule of the common law that the Crown was not answerable for the torts committed by its servants have never been applied in India. The Crown assumed the sovereignty of British India, which was till then administered by the East India Company, by the Government of India Act, 1858. Section 65 of this Act is a principal source of the law relating to the liability of the Government, this sec. provides that : "All persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable against the Secretary of State for India as they could have done against the said Company."

54. Tortious Liability of State India: The Govt. of India Act, 1858: Sec. 65 -All persons shall & may take such remedies & proceedings against the Secretary of State for India as they would have taken against the East India Company. The Govt. of India Act, 1915: Sec. 32 (2) - Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Govt. of India Act,1858, and this act had not been passed. The Govt. of India Act, 1935: Sec. 176 - The liability was co-extensive with that of secretary of state for India . The Constitution of India: Art. 300

55. This provision was continued by the Government of India Acts 1915, 1935, continued by Article 300(1) of the Constitution of India which reads : -"The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by an Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted." It is to be noted that the Heads of State, i.e. the President of India, and the Governors of States have personal immunity and they are not answerable to any court, as provided in Article 361, for the exercise and performance of the powers and duties of their offices.

56. The Union of India and the States of the Union are juristic persons and they can sue and be sued in their names. The extent of liability of the Union and the States under Article 300(1) of the Constitution is the same as was the liability of the East India Company. However , this statement is subject to the new liabilities imposed by the Constitution of India or laws made under it. the decision of the Supreme Court of Calcutta rendered in 1861 in the case of is important. Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India (1868-1869) 5 Bom HCR App ln this case a servant of the plaintiff company was proceeding on a highway in Calcutta driving a carriage drawn by a pair of horses . Due to the negligence of the servants of the Government employed in the Government Dockyard at Kidderpore in carrying a piece of iron funnel needed for repair of a steamer, an accident happened in which one of the horses driving the plaintiffs carriage was injured.

57. The plaintiff company sued the Secretary of State for India for damages caused due to the negligence of the servants of the Government. In holding that for such an accident caused by the negligence of its servants in doing acts not referable to Sovereign powers the East India Company and so the Secretary of State for India was liable. Peacock, C.J ., who delivered the judgment of the court, drew a distinction between the acts done by the public servants in the delegated exercise of sovereign powers and acts done by them in the conduct of other activities and made the following pertinent observation "In determining the question whether the East India Company would, under the circumstances, have been liable to an act ion under the general principles applicable to Sovereigns and States, and the reasoning deduced from the maxim of the English law that the King can do no wrong would have no force.

58. The East India Company were not Sovereigns and, therefore, could not claim all the exemptions of a Sovereign ; and they were not the public servants of Government and, therefore, did not fall under the principle of the cases with regard to the liabilities of such persons, but they were a Company to whom sovereign powers were delegated and who traded on their own account and for their own benefit, and were engaged in transactions partly for the purposes of Government, and partly on their own account, which without any delegation of Sovereign rights might be carried on by private individuals . There is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them."

59. - Sovereign Powers: “Powers which cannot be lawfully exercised except by a sovereign, or private individual delegated by a sovereign to exercise them.” Secretary of State v. Hari Bhanji (1882) 5 ILR Mad. 273 - The immunity of the East India Company extended only to “acts of state” .

60. Pre-Constitution Period and Doctrine of Sovereign Immunity The S tate was not liable for torts arising out of it: 1. Commandeering goods during war. 2. Making or repairing military roads. 3. Administration of Justice. 4. Improper arrest, negligence or trespass by police officer. 5. Wrongful refusal to issue a license to sell ganja . 6.Negligence of officers of the Courts of Wards in the administration of estate in their charge. 7. Negligence of officers in the discharge of statutory duties. 8. Loss of movable property in the custody of Government.

61. Post Constitution period- Vidyawati to Kasturilal and the later developments State of Rajasthan v. Vidhyawati (AIR 1962 SC 933) - The immunity for state can only be claimed if the act in question was done in the course of the exercise of sovereign functions. - The state is liable for tort in respect of a tortious act committed by its servant within the scope of his employment but wholly dissociated from the exercise of sovereign powers. Kasturi Lal Ralia Ram Jain v. State of U.P. (AIR 1965 SC 1039) - The Govt. was not held liable for the tort committed by its servant because the tort was said to have been committed by him in the course of the discharge of statutory duty. - The state denied its liability on the ground that the loss suffered by the appellant was occasioned while the state was engaged in the execution of a sovereign function. Criticism: The judiciary has not laid down any clear test to determine the character of a function as sovereign & non-sovereign .

62. Post Constitution period- Vidyawati to Kasturilal and the later developments Khatri v. State of Bihar (AIR 1981 SC 928) (The Bhagalpur Blinding case) Rudal Shah v. State of Bihar (AIR1983 SC 1086) Sebastian M. Hongray v. UoI (AIR1984 SC 1026) Bhim Singh v. State of J & K (AIR1986 SC 494)