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In the case of Oriental Steam Navigation Vs. Secretary to the State of India (Bombay High Court Reports Vol.V, 1868-69), it was held by the Calcutta High Court that there was a distinction between acts done by the public servant in the delegated exercise of sovereign powers and acts done by them in the conduct of other activities and that in respect of non-sovereign functions, the Secretary of State was made liable. This Court in Secretary of State Vs. Hari Bhanji reported in (1882) ILR Madras 273 held that the immunity of East India Company could be applicable only to "Acts of the State”. In the said case, during the course of transit of salt from Bombay to Madras Port, the rate of duty of salt was increased and the merchant was asked to pay the difference in the duty at Madras port." The merchant filed the suit for recovery after paying the amount under protest and this Court held that the Government was not liable as it was discharging sovereign functions. In another case, viz., Secretary of State Vs. Cockraft reported in 1914 SCC OnLine Mad 637, this Court held that suit for damages, for not maintaining Military road, wherein the plaintiff got injured by the negligent leaving of heap of gravel maintained by the PWD, while he was walking, was not maintainable as maintenance of Military road was one of the sovereign functions of the Government. The above cases would indicate that in case of non-sovereign functions of the State or its https://www.mhc.tn.gov.in/judis/ servants, suit for damages was held to be maintainable and in respect of sovereign functions, suit was not maintainable.

9.The State of Rajasthan Vs. Vidyavati & another reported in AIR 1962 SC 933 is a land mark judgment, post Independence, in which the Hon'ble Supreme Court held that the State is vicariously liable for negligence of the officials of the Government, while discharging non-sovereign functions. In that case, the State owned Jeep, which was driven by its driver in a rash and negligent manner, while taking the vehicle from the workshop to the residence of the Collector after repairs, for the official use of the Collector, hit a pedestrian, thereby causing fatal injuries. Though State claimed immunity on the ground of discharge of “sovereign functions”, the same was rejected by the Hon’ble Supreme Court holding that the State was vicariously liable for negligence of the driver as it was not a sovereign function and the accident occurred not during an official tour. The relevant paragraph of the said judgments is extracted as follows:

Therefore, the Apex Court held that the State should be liable for tortious act committed by its servants, within the scope of his employment, which is not connected with the discharge of sovereign powers.

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10.Though subsequently in the case of Kasturi Lal Ralia Ram Vs. State of Uttarpradesh reported in AIR 1965 SC 1039 the Hon’ble Supreme Court distinguished the judgment of Vidyavati's case on facts confining it to tortious liability not arising from exercise of sovereign powers and upheld the defence of sovereign immunity and further held that the area of employment referable to sovereign powers must be strictly determined. However, in a subsequent judgment the Hon’ble Supreme Court in the case of Nagendra Rao Vs. State of Andhra Pradesh reported in AIR 1994 SC 2663 held that the welfare state functions of States are multifaceted and it is not confined to only sovereign functions. The State's functions are spread over to regulate and control activities of the people in every sphere including educational, commercial, social, etc., and the Court held that distinction between sovereign and non sovereign powers has almost disappeared and the distinction between the sovereign and non-sovereign functions depends upon the nature of power and its exercises. Therefore, it is clear that the State is liable even for the acts for which the Government servants have not been authorized to do and if the same can be connected with the act so authorized, and for negligent, careless acts of the employees during the course of the employment.

11.Be that as it may, the defence of sovereign immunity has been https://www.mhc.tn.gov.in/judis/ completely given a go by, by the higher Courts and compensation is awarded to the citizens either under Article 32 or 226 for violation of fundamental rights, especially, Article 21 of the Constitution of India. In a number of cases, the respective Governments have been held to be liable for tortious acts committed by their employees in course of the employment for violation under Article 21. In the case of Kathri Vs. State of Bihar reported in AIR 1981 SC 928, the Hon'ble Supreme Court awarded compensation to the prisoners, who were blinded by the police by holding that even though police was discharging sovereign functions, the inhuman acts of the officials led to the violation of Fundamental Right conferred under Article 21 of the Constitution of India. Similarly in the case of Rudal Shah Vs. State of Bihar reported in AIR 1983 SC 1086 the Hon'ble Supreme Court awarded Rs.35,000/- for the damages caused to the Prisoner in a Writ Petition filed under Article 32 as the convict was detained for a period of 14 years in jail, even after acquittal by Criminal Courts. A sum of Rs.50,000/- was awarded as compensation under Article 32 of Constitution of India in a Writ Petition filed under Article 32 before the Hon’ble Supreme Court, when an MLA from Rajasthan was illegally arrested and detained to prevent him from attending Assembly session in the case of Bhim Singh Vs. State of Rajasthan reported in AIR 1986 SC 494. In the case of Saheli Vs. Commissioner of Police reported in AIR 1990 SC 513, https://www.mhc.tn.gov.in/judis/ the Hon’ble Supreme Court awarded compensation for the death of a 9 year old child by police assault and beating. In that case, a sum of Rs.75,000/- was awarded to the parents to be paid by the Delhi administration and to be recovered from the officers, who were responsible for the inhuman act.