January 25, 2021

Statutory Authority- Defense of State

law of torts

Statutory authority means authority which has been derived directly from the legislature, and any person working under the statutory authority has caused harm to the other person then that will not come under any wrong and no action can be taken on that.

Even if under normal circumstances that act would have amounted to tort, but if there is statutory authority that act would be not considered under tort. Although for that particular act if there is provision for compensation that can be provided to the person, otherwise not. This statutory authority gives the power to the state and its authority to do act for the welfare and while doing if some harm is caused to any person then also, they will be immune from that particular act.

This came particular from law maxim “Rex Non Postest Peccare” (the king can do no wrong) this is the source of sovereign immunity from which the state use its statutory. This was earlier used in England which used to immune the king from any liability. The doctrine absolves the state from tortious liability of the people acting for the state.

It mainly cam due to 2 reasons: –

  • As an attribute of sovereignty, it could not be sued. In its court without its consent.
  • The award of compensation affects the treasury of the crown. Sovereign immunity is thus justification for wrongs committed by the state or its representative, seemingly based on ground of public policy.

The Indian courts, to not get genuine claims for damages brought to the courts, and its is refuted by an accident doctrine, but for various reason it was left for the court to decide compatibility of this doctrine following the constitution.

Before the independence, we had British rule so they used to have this sovereign immunity for the protection of the people. In the supreme court, in the case of O. and P. Navigation company vs Secretary of state of India. In the year 1893, the terms ‘sovereign’ and ‘non-sovereignty’ was being used for deciding the liability of the East India Company for torts committed by its servants.

C.J. Peacock determined the vicarious liability of the East India Company, by classifying its functions into ‘sovereign’ and ‘non-sovereign immunity’. In this the two divergent view was presented by the courts after the landmark decision in which the most important decision given was given also in the judgment of Hari Bhan ji vs. Secterary of State where the court of madras said that immunity of the east India company extended only to what we call the ‘act of state’ and the distinction between the sovereign and the non-sovereign body needs to be clearly determined and they should function well according to that.

One of the major cases that happened after the independence was state of Rajasthan vs Vidyawati where the servant of the government negligently drove the vehicle and the person particularly injured the pedestrian. The court in this case, not allowed the state to use sovereign immunity and guided the state to compensate the victim.

The opposite view of the cases discussed above was taken in Kasturi Lal vs. State of U.P in this case the court took a very different view about the state and its sovereign power that it can use against people. This altogether created a situation of confusion. In this case the supreme court followed the guidelines that were provided in P.O.S steam navigation case by differentiating between the sovereign and non-sovereign function of state and held, the abuse of power that police used in this comes under the sovereign immunity of the state and held state not to be liable for the at done by its servant (police).

Particularly if we want to difference between the sovereign and non-sovereign function of state, it is not so easy to create the difference and from a particular line between the two. The court then clearly distinguished in the Vidyawati case. In this case it held that in the name of sovereign immunity state cannot use its power arbitrarily the power that was given in Kasturi lal case were contradicting and were based on the governmental power of state. Finally, the court expressed that the law regarding the sovereign immunity is unsatisfactory and the remedy to cure the position lies only in the hand of legislature, they need to define and limit the power and allow them only to use for the welfare of people not otherwise.

In the case of State of Andhra Pradesh v. Challa Ramakrishnan Reddy the court held, “Maxim that king can do no wrong or that crown is not answerable to the people for any violation thereof”.

Thus, the choice of exemption, which may be a statutory justification, can’t be applied just in case of violation of fundamental right, because that state cannot take the defense of statutory authority and the right that state has cannot take away, their fundamental right and they cannot put statutory authority above the fundamental right.

The procedural aspect of this was that aggrieved person can successfully file their petition in trial court for tortious act committed by state, and there’s no got to approach the supreme court and high court under 32 and 226.

However, the court during in the case while holding that Kasturi lal case paled into insignificance and was not to binding value, didn’t consider the cases where no fundamental rights but other legal rights, could be violated. The issue needs to be decided only on a constitutional bench of seven or more judges, if the necessity arises to overrule the Kasturi lal case.


Author Details: Prachi Agnihotri (UPES)

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