Vicarious liability refers to a case where liability of someone arises and he is held responsible for the acts of another person. In law of torts vicarious liability is considered as an exception to the general rules that person is held liable only for his own acts. This concept is based on the maxim qui facit per se per alium facit per se .i.e. “ He who does an act through another is deemed in law to do it himself. In cases of vicarious liability both persons are liable i.e. the person who actually does the act and also the person at whose behest the act is done. Some examples of vicarious liability are:-
- Liability of master for the tort of his servant
- Liability of state.
- Liability of employer for the tort of his employee.
- Liability of principal for the tort of his agent.
Now a big question comes that what all constitutes Vicarious liability. So main elements of vicarious liability are:-
- There must be a relationship of certain kind
- The wrongful ac must be related to the relationship in a certain way.
- The wrong must be done within the course of employment.
Vicarious liability of State
In India, the crown assumed the sovereignty of India in 1858 and took over the administration of India from the hands of company. The act declared that the secretary of state in council to be a body of corporate for the purpose of suing and being sued. This concept was reproduced in government of India act 1915 which declared in its section 32 as:-
 The secretary of state in council may sue and be sued by the name of Secretary of state in council as a body corporate.
 Every person shall have the same remedies against the secretary of state-in council as he might have against the east-India company if the government of India act 1858 and this act had not been passed.
The government of Indi may be sue or be sued by the name of the union of India and the government of state may sue or be sued by the name of state and may, subject to any provision which may be made by the act of parliament or of the legislatures of such states enacted by virtue of powers conferred by the constitution.
The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extend the administration would be liable for the torts committed by its servants is a complex problem especially in developing countries with ever widening State activities. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for the torts committed by its servants is based on three principles:
Respondeat superior (let the principal be liable).
Quifacit per alium facit per se (he who acts through another does it himself).
Socialisation of Compensation.
Position in England: Under the English Common Law the maxim was “The King can do no wrong” and therefore, the King was not liable for the wrongs of its servants. But, in England the position of old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong actually authorised by it or committed by its servants, in the course of employment. With the increasing functions of State, the Crown Proceedings Act had been passed, now the crown is liable for a tort committed by its servants just like a private individual.
POSITION IN INDIA
Unlike the crown proceedings act 1947, we do not have any statutory provisions mentioning the liability of state. The law in India with respect to liability of state is almost the same as in England. It therefore becomes important to trace the development of law on this subject, as contained in article 300 the position of liability of state in article 300 is as under:-
 The government of India may sue or be sued by the name of union of India and the government of state may sue or be sued by the name of Union of India and government of state by the name of union of state and secondly , that the Government of India or the Government of a State may 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 be sued, “if this provisions which may be made by an Act of Parliament or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution.
Some Pre-Constitution judicial decisions
- Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
This case mainly holds that if any act as done was done in the exercise of sovereign function, then the east India Company or state would not be liable. The Court drew a distinction between acts done in exercise of “non-sovereign power” that is, acts done in the conduct of undertakings which might be carried on by private person-individuals without having such power. The liability could only arise in case of “non-sovereign functions”. The East lndia Company had a two-fold character –
(a) as a sovereign power and
(b) as a trading company.
The liability of the Company could only extend to in respect of its commercial dealings and not to the acts done by it in exercise of delegated sovereign power.
- Nobin Chandra Dey v. Secretary of State for India [ii]
This doctrine of immunity, for acts done in the exercise of sovereign functions, was applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of State. The plaintiff in this case contended that the Government had made a contract with him for the issue of a licence for the sale of ganja and had committed breach of the contract. The High Court held that upon the evidence, no breach of contract had been proved. Secondly even if there was a contract, the act had been done in exercise of sovereign power and was thus not actionable.
Post Constitutional judicial decisions.
In recent times there have been many judgments pertaining to judicial decisions relating to liability of state. But the 3 most important cases to have a clear picture rearding liability of state are:-
- Kasturi lal v State of Uttar pradesh In this case the court divided the state function into sovereign and non-sovereign. The sovereign function dealt with those acts which are paramount functions of State which necessarily have to be performed by government employees eg. Maintenance of Law and order, defense and security. And the non-sovereign function dealt with those ancillary functions of state which can be performed by private individuals without delegation of governmental authority eg. Driving official vehicles. And therefore if the employees of government are performing sovereign function of the government then the government is very much liable for the acts of its employees.
- N. Nagendra rao V State of Andhra pradesh
In this case court demolished the wall of separation between the sovereign and non sovereign function. It held that if any intentional or negligent act of the public servant results in violation of rights of citizens then the is liable to pay compensation.
- Nilabati behera v state of Orissa
In this case the court went a step ahead and revised the concept of constitutional tort and according to it if any state action results in violation fundamental rights of citizens then the state is liable to pay exemplary compensation eg. Custodial violence, illegal detention, police torture and encounter killing.
In all the cases discussed before, the entity sought to be made liable is not the government but the State. So far as the government is concerned, it may well say that the statutory authority is neither accountable nor subordinate to it. Hence the government cannot be visited with the consequences flowing from a wrong order made by a statutory authority. As far as the State is concerned, it cannot put forward any such plea inasmuch as the statute is enacted by it by Legislature. The appointment of the authority is also done either by the Statute itself or by such authority as may be authorised by the Statute. The act of the statutory authority in such a case is an act done for and on behalf of the State. Hence the state is held liable. State’s liability for the acts or omissions of statutory authorities arises only in cases where the statutory authority acts outside his legal authority while purporting to act pursuant to the legal authority conferred upon him and the act or omission, which causes or results in damage to a person, is not within the ambit of the statutory protection, if any, contained in such enactments. This rule is evolved for the obvious reason that an act done under a statute and in accordance with the statute can never amount to a tort as was said by the Supreme Court by following cases.
 Constitution of India bare act
 1861 5 BOM HCR App I,p.1
 I.L.R 1 Cal. 11.
 AIR 195 SC 1039
 AIR 1994 SC 2663
 1993 AIR 1960,1993 SCR 581