Who Cannot Sue and Who Cannot Be Sued Under Law of Torts

The law of torts is based on the principle that every person has a right to seek legal remedy for a civil wrong. This principle ensures that whenever a legal injury is caused, the aggrieved party can approach a court for relief. At the same time, the person committing the wrongful act can be held liable.

However, this general rule is not absolute. The law recognises certain exceptions where specific persons are either restricted from suing or are protected from being sued. These exceptions arise due to considerations of public policy, legal status, mental capacity, and the need to protect certain institutions. Understanding these categories is essential for analysing liability and rights under tort law.

General Principle of Capacity in Tort Law

The concept of capacity determines whether a person is legally competent to sue or be sued. In general, any person who is of sound mind and not disqualified by law can initiate legal proceedings and can also be made liable for a tort.

However, the law creates certain exceptions to balance competing interests:

• Protection of vulnerable persons such as minors and persons with mental illness
• Preservation of sovereign and diplomatic functions
• Recognition of legal disabilities arising from status, such as bankruptcy
• Maintenance of public policy and national security

These considerations shape the categories of persons who cannot sue and those who cannot be sued.

Who Cannot Sue Under Law of Torts

Certain categories of persons are restricted from initiating legal proceedings. These restrictions are based on their legal status, incapacity, or public policy considerations.

Alien Enemy

An alien enemy is a person belonging to a country at war with India or residing in enemy territory. The law restricts such persons from accessing courts during the period of hostility.

• An alien enemy cannot sue in Indian courts without prior permission of the Central Government under Section 83 of the Code of Civil Procedure.
• If residing in India with government approval, limited rights to sue may be granted.
• The restriction ensures that legal processes are not used in a manner that may prejudice national security.

This limitation is rooted in the broader principle of protecting the interests of the State during conflict.

Convicts and Prisoners

A convict is a person against whom a sentence of imprisonment or death has been pronounced. Earlier legal systems imposed strict disabilities on convicts.

• Modern law recognises that conviction does not remove all civil rights.
• A convict can sue for personal wrongs such as assault, negligence, or defamation.
• Property-related rights are also preserved.
• The position that fundamental rights survive imprisonment was recognised in D.B.Y. Patnaik v. State of Andhra Pradesh, where it was held that imprisonment does not extinguish all rights.

This reflects the idea that legal protection continues even during incarceration.

Bankrupt Persons

A bankrupt person is one whose financial affairs are placed under legal control due to insolvency.

• Property of the bankrupt vests in a Trustee or Official Assignee.
• The right to sue for torts affecting property lies with the Trustee.
• For personal injuries such as assault or defamation, the bankrupt retains the right to sue.
• Where both property and personal rights are affected, the cause of action may be divided.

This rule ensures proper management of the bankrupt’s estate for the benefit of creditors.

Husband and Wife

The legal position of spouses has evolved significantly over time.

• Under earlier law, spouses could not sue each other due to the concept of unity of legal personality.
• Statutory developments recognised the separate legal identity of husband and wife.
• In India, both spouses can sue each other and third parties for tortious acts.

This change reflects modern recognition of equality and individual legal rights within marriage.

Corporations

A corporation is an artificial legal person recognised by law.

• It can sue for torts affecting its property, business, or reputation.
• It can bring an action for defamation if it affects its commercial interests.
• In Manchester Corporation v. Williams, it was recognised that a corporation can sue for injury to its reputation.
• However, a corporation cannot sue for purely personal injuries, as it lacks human attributes.

The law thus limits corporate rights to matters consistent with its legal nature.

Minors

Minors are persons below the age of majority and are considered legally incapable of acting independently.

• A minor can sue through a next friend or guardian.
• The law ensures protection of minors through procedural safeguards.
• In Walker v. Great Northern Railway, it was held that a minor cannot maintain an action for injuries sustained while in the mother’s womb.

This rule highlights traditional limitations on claims relating to prenatal injuries.

Foreign State

A foreign State enjoys certain privileges under law.

• A foreign State can sue in Indian courts only if recognised by the Central Government under Section 84 of the Code of Civil Procedure.
• Recognition is essential to maintain diplomatic and legal relations.

This provision ensures respect for sovereignty and international comity.

Who Can Be Sued Under Law of Torts

As a general rule, any person or entity committing a tortious act can be made liable. This includes individuals, corporations, organisations, and even the State. Liability may also arise vicariously, where one person is held responsible for the acts of another.

However, certain persons enjoy immunity or conditional protection, limiting their liability.

Who Cannot Be Sued Under Law of Torts

Certain categories of persons are either completely immune or enjoy conditional immunity from being sued. These protections are based on legal principles, public policy, and international obligations.

Government and Sovereign Functions

The liability of the State depends on whether the act is sovereign or non-sovereign in nature.

• The President and Governors are immune from legal proceedings for acts performed in their official capacity.
• The State is liable for acts of its servants when they relate to non-sovereign functions.
• In Kasturilal v. State of Uttar Pradesh, it was held that the government is not liable for acts done in the exercise of sovereign powers.
• However, liability may arise in non-sovereign functions, as seen in Union of India v. Sugrabai, where the act was committed during the discharge of assigned duties.
• Earlier, in Secretary of State for India v. Shivranji, liability was recognised for improper interference by government officials.

This distinction is central to determining State liability in tort law.

Foreign Sovereign

Foreign sovereigns are protected under principles of international law.

• A foreign sovereign cannot be sued without the consent of the Central Government.
• Consent may be granted in specific situations, such as commercial activities or property disputes.
• The rule ensures respect for the sovereignty of other nations.

This immunity is essential for maintaining diplomatic relations.

Ambassadors and Diplomats

Diplomatic immunity protects foreign representatives from legal proceedings.

• Ambassadors and diplomatic agents cannot be sued during their tenure.
• Immunity extends to family members and staff forming part of the mission.
• In Harbhajan Singh Dhalla v. Union of India, permission to sue a foreign embassy was refused, reinforcing diplomatic immunity.

This principle ensures smooth conduct of international relations.

Public Officials

Public officials enjoy limited protection for acts performed in their official capacity.

• No action lies for acts done in the exercise of sovereign authority.
• However, officials can be sued for acts performed in their private capacity.
• In Union of India v. Bhagwati Prasad, it was recognised that liability may arise for negligent acts not protected by sovereign immunity.

This distinction balances accountability with protection of official duties.

Minors

Minors can be held liable for torts, but their liability is subject to limitations.

• Liability depends on age, maturity, and mental capacity.
• For torts requiring intention or knowledge, lack of understanding may act as a defence.
• In Walmsey v. Humonick, a young child was not held liable due to lack of understanding.

This approach ensures fairness in imposing liability.

Persons with Mental Illness

Mental capacity plays a crucial role in determining liability.

• A person may not be held liable if incapable of understanding the nature and consequences of the act.
• If the act is committed during a lucid interval, liability may arise.
• Courts assess the degree of mental incapacity before imposing liability.

This rule ensures that liability is linked to awareness and intention.

Corporations

Corporations can be sued for torts committed by their agents or employees.

• Liability arises when the act is done within the scope of employment.
• If the act is outside authority, the corporation may not be liable.
• In Poulton v. London and South Western Railway Company, the corporation was not held liable as the employee acted beyond his authority.

This principle is governed by the doctrine of vicarious liability.

Trade Unions

Trade unions have undergone legal changes regarding liability.

• Initially, registered trade unions were protected from certain suits.
• Later developments allowed them to be sued in their registered name.
• This ensures accountability while protecting collective rights.

The law now balances immunity with responsibility.

Conclusion

The law relating to who cannot sue and who cannot be sued reflects a carefully structured system of rights and limitations. While the general principle allows every person to seek remedy for a wrong, the law recognises exceptions based on personal capacity, legal status, and public policy considerations.

These exceptions serve multiple purposes, including protection of vulnerable individuals, preservation of governmental functions, and maintenance of international relations. At the same time, the law ensures that such immunities are not absolute and are subject to conditions and limitations.

Note: This article was originally written by Riddhi Rahi [Student, UPES, (School of law), Dehradun] and published on 06 January 2021. It was subsequently updated by the LawBhoomi team on 27 April 2026.