Kochu Thommen, J.
1. The question which arises for our consideration is whether the State is responsible for the wrongful acts committed by its servants in the course of their official duties.
2. This appeal arises from the judgment of the Subordinate Judge of Kozhikode in a suit for damages. The 1st defendant, the State of Kerala, is the first appellant before us. The trial court found that the plaintiff was injured as a result of the negligence of the 2nd defendant who was an employee of the 1st defendant and that both the defendnts were liable in damages to the plaintiff.
3. The facts of this case may be briefly stated as follows: On the morning of 11-12-1966, the plaintiff who was a student of St. Joseph's College, Devagiri, Calicut, was knocked down by a jeep car (Reg. No. K.L.D. 476) while crossing the Cannanore road. The jeep belonged to the Government of Kerala, the 1st defendant, and it was driven by V.V. Sreenivasan, the 2nd defendant. The Revenue Divisional Officer, Calicut, was travelling in the jeep. The jeep was escorting the Adviser to the Governor who was proceeding to Sultan's Battery after attending a College function at the B.T. College, Calicut. As a result of the accident, the plaintiff was seriously injured. His facial bone and right leg were fractured. He had to be hospitalised at the Calicut Medical College Hospital for a number of days. Even at the time of the institution of the suit, he had not completely regained his normal health. The plaintiff therefore claimed from the defendants a sum of Rs. 15,000/- by way of damages.
4. The defendants contended that the accident was caused by the negligence of the plaintiff in rashly and recklessly crossing the road. They stated that there was no negligence at all on the part of the 2nd defendant. It was further contended that the State was, in any case, not liable for the tortious acts of its servants.
5. The trial court found that the accident was caused by the negligence of the driver, the 2nd defendant, and held that he was liable in damages to the plaintiff. The court further held that the State, as the employer of the driver, was vicariously liable for the consequences of its employee's negligence. It was accordingly held that the defendants were liable to pay the plaintiff a sum of Rs. 8,000/- by way of damages together with proportionate costs.
6. The only question that was urged before us by the Govt. Pleader at the time of the arguments was as regards the liability of the State for damages in respect of the tortious act committed by its servant in the course of his employment. He contended that the State was immune from the conquences of such acts.
7. In State of Rajasthan v. Mst. Vidhyawati (1962) Supp. 2 SCR 989 : (AIR 1962 SC 933) the Supreme Court stated that the liability of a State for damages in regard to the tortious act committed by its servant within the scope of his employment and functioning as such was the same as that of any other employer. The Court held that the State was not entitled to any immunity from vicarious liability for the tort committed by a Government driver while driving a Government jeep car from a workshop to the residence of the Collector for the latter's official use. Speaking for the Court, Sinha C. J. observed: (at p. 938 of AIR)
'In this connection it has to be remembered that under the Constitution we have established a welfare State, whose functions are not confined only to maintaining law and order, but extend to engaging in all activities including industry, public transport, state trading, to name only a few of them. In so far as the State activities have such wide ramifications involving not only the use of sovereign powers but also its powers as employers in so many public sectors, it is too much to claim that the State should be immune from the consequences of tortious acts of its employees committed in the course of their employment as such.'
The court pointed out that in England the Crown was no longer immune from proceedings in court in regard to the tortious acts of its servants. The Court stated: (at p. 940 of AIR)
'It was impossible, by reason of the maxim 'The King can do no wrong', to sue the crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in state-craft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up.'
The Court therefore concluded as follows:
'Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and function as such as any other employer. The immunity of the Crown in United Kingdom, was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India.'
The Court held that in an independent India, governed by a Constitution, there was no justification for upholding the principle of immunity which was based on an outmoded common law theory that no longer operated as such in the country of its birth.
8. The question of immunity again came up for the consideration of the Supreme Court in Kasturilal Ralia Ram Jain v. State of Uttar Pradesh (1965) 1 SCR 375 : (AIR 1965 SC 1039). In that case, the question was whether the State was vicariously liable for the tort committed by certain police constables. The claimant who was a dealer in bullion was taken into custody by three police constables who seized gold and silver from him. Although silver was returned to him after he was released, the gold could not be traced as it had been misappropriated by one of the constables who had escaped to Pakistan. The Supreme Court held that the trial court was right in finding that the loss suffered by the claimant was on account of the tortious act of the police officers. It was however held that since the act was committed by public servants in the discharge of their statutory duties which were referable to the exercise of sovereign powers, the State could not be held vicariously liable for the consequences of such acts. The Court pointed out that a distinction had to be drawn between acts which were referable to the exercise of sovereign powers and acts which were not an referable. In respect of the former, it was pointed out that the State was not vicariously liable for the wrongful acts of its servants. Speaking for the Court, Gajendragadkar C. J., stated: (at p. 1046 of AIR)
'If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasised by Chief Justice Peacock* as early as 1861 has been recognised as a classic statement on this subject.'
9. Relying on such distinction, the Court concluded as follows: (at p. 1048 of AIR)
'In the present case, the act of negligence was committed by the police officers while dealing with the property ... which they had seized in exercise of their statutory powers. Now, the power to arrest a person, to search him. and to seize property found with him, are powers conferred on the specified officers by stature and in the last analysis, they are powers which can be properly characterised as sovereign powers.'
For this reason, the claim for damages arising from the tort committed by the police constables was dismissed.
10. The Court apparently felt compelled to follow the Common Law as it existed in England prior to the Crown Proceedings Act, 1947. In the opinion of the Court, the Common Law doctrine of immunity in its original form still operated in India. This is clear from the following observation of the Supreme Court: (at p. 1049 of AIR)
'...the doctrine of immunity which has been borrowed in India in dealing with the question of the immunity of the State in regard to claims made against it for tortious acts committed by its servants, was really based on the Common Law principle which prevailed in England; and that principle has now been substantially modified by the Crown Proceedings Act'
The Court was not however satisfied with the position, for it stated: (at p. 1049 of AIR)
'In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the legislature'.
11. The question once again appeared for the consideration of the Supreme Court in Shyam Sunder v. State of Rajasthan (AIR 1974 SC 890). Mathew J., speaking for the Court referred to the following contention of the State: (at p. 893 of AIR)
'It was, however, argued on behalf of the respondent that the State was engaged in performing a function appertaining to its character as sovereign as the driver was acting in the course of his employment in connection with famine relief work and therefore, even if the driver was negligent, the State would not be liable for damages.'
In answer to that contention, the Court stated: (at p. 894)
'We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.'
(Italics supplied).
Referring to the doctrine of sovereign immunity, the Court observed (at p. 893 of AIR):
'We do not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today.'
After referring to Blackstone and Justice Holmes,' two ardent supporters of the doctrine of sovereign immunity, the Court pointed out : (at p. 894 of AIR).
'Today, hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State.'
12. Although in Kasturilal Ralia Ram Jain v. State of Uttar Pradesh (1965) 1 SCR 375 : (AIR 1965 SC 1039), the Supreme Court felt that the distinction between acts which are referable to the exercise of sovereign powers and other acts, was clear and precise in law, the judgment of the Supreme Court in Shyam Sunder v. State of Rajasthan (AIR 1974 SC 890) indicates that such distinctions are not always clear and precise. In the latter case, it was held that the driver of a government vehicle in the Department of Public Works, and acting in the course of his employment connected with the famine relief work which was undertaken by the Department, was not exercising any function which could be referable to the exercise of a sovereign power. For, as the court pointed out, it was a work 'which can be and is being undertaken by private individuals.' The test applied by the court for determining the nature of the act, namely, whether or not it was an exercise of sovereign power, was whether such act could be undertaken by private individuals. The negligence on the part of the driver arose in the course of and in connection with famine relief work and the State was held to be not entitled to any immunity from vicarious liability; the reason being that famine relief work was, ex hypothesi, not referable to sovereignty. The nature of the work was thus determined with reference to its object. In the former case (Kasturilal Ralia Ram Jain), misappropriation of gold by a police constable after seizing the same from a person in police custody was held to be an act in respect of which the State was entitled to claim immunity, presumably because the original act of seizure was an act which no private individual was competent to do. Here immunity from vicarious liability was recognised, although the tort (misappropriation), unlike in Shyam Sunder's case, arose subsequent to and unconnected with the seizure of gold the object of which was held to be referable to sovereignty. One basic distinction that can be pointed out between the two cases is that while in Shyam Sunder the tort arose while the servant of the State was engaged in carriage of goods, which on the face of it was not referable to sovereignty, although the nature of the act was tested with reference to its object (famine relief), in Kasturilal the tort was held to emanate from seizure of gold which on the face of it was a statutory exercise of power, although the object of the tortious act was personal gain for the tortfeaser. In this connection, the Court cited with approval the following passage from the judgment of the Chief Justice Peacock: (at p. 1046 of AIR 1965 SC),
'Where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers; by which we mean powers which cannot be lawfully exercised except by sovereign, or private individual delegated by a sovereign to exercise them, no action will lie.''
P. & O. Steamship Navigation Co. v. Secretary of State for India (1868-69) 5 Bom HCR App. A 1; See (1965) 1 SCR 375, at p. 386 : (AIR 1965 SC 1039 at p. 1046).
13. The nature of the act cannot be truly determined except in connection with its object. Whether the driver of a truck was performing a function which could be undertaken by any private individual would depend upon the object for which he was employed at the relevant time, if the truck was transporting ammunitions or provisions for the army in the battle field, the nature of his function would very well assume a different complexion from that in Shyam Sunder, (AIR 1974 SC 890) although in either case the physical act performed by the driver was the same, namely, carriage of goods.
14. The logic or rationale of such nice distinctions is in many cases not easily discernible. Armed forces are one of the most striking instrumentalities for the exercise of state sovereignty and their field of operation is in most cases out of bounds for private individuals. Supposing the driver of a military truck was carrying provisions for the defence personnel who were employed in famine relief work, would his functions be referable to an exercise of sovereign power merely because he was engaged in the service of the armed forces who were in the interest of the State, catering to the needs of the civilian population in times of famine? Or would it have made any difference if the famine occurred during and as the result of a war in which the nation was engaged? None of these cases can be characterised as a commercial activity, and yet, if the ratio in Shyam Sunder (AIR 1974 SC 890) is applied, none of them can be referable to an exercise of sovereign power any more than the act of the driver in that case, as such work of transporatation of provisions to succour the famished populace can as well be undertaken by private individuals. And yet can it not be pertinently asked, 'Is not famine relief work an integral and essential part of military preparedness, and is not the ultimate object as relevant as the immediate object in judging the character and nature of an act?'
15. The ultimate or immediate object may not be always discernible. Take for example, the production of armaments in a military factory. Munitions and equipment can as well be produced by a civilian factory as they can be by a military factory, and it is conceivable that part of the products of a military factory are reserved for commercial purposes just as the products of a commercial factory can be exclusively or partially reserved for the military. And yet, can it be said that a military factory producing weapons is not performing a function which is referable to sovereignty? If a truck belonging to and operated by such a military factory negligently ran over and killed a citizen, can the State, in the absence of a statutory exemption, claim immunity from vicarious liability? A similar question may arise, if there was an explosion in that factory which killed or injured persons in the neighbourhood and damaged private property. The answer to any one of these questions would depend upon the view that one ultimately takes on the scope of sovereign immunity. Yet neither the nature nor the object of the act seems to be a sure test to demarcate regions of sovereignty. It is true that extreme cases are easy to recognise; such as acts of war or 'hot pursuit' of a foreign ship as example of sovereign functions on the one hand, and carriage of goods and passengers for reward or sale of commodities as examples of commercial activities on the other hand. In between these two extremes, innumerable examples can be cited where it will not be easy to draw any rational or clear distinction between sovereign acts (acts jure imperii) and commercial activities (acts jure gestionis). It is because of this difficulty and the inequity of exempting the State from private law obligations that it has been increasingly recognised in most jurisdictions that an unlimited claim of State immunity from legal proceedings has no theoretical or legal basis. That is the reason why the Crown Proceedings Act, 1947 drastically curtailed the operation of the doctrine of immunity in England.
16. The doctrine of absolute immunity never formed part of classical law. Neither Gortius nor Bynkershoek nor Vattel accepted the doctrine in its absolute form. Nor does it find acceptance in modern jurisprudence. The doctrine is now confined to narrow regions, namely, (a) the immunity of a foreign State from the jurisdiction of the local courts in regard to acts jure imperii (non-commercial activities of States in its sovereign capacity) as distinguished from acts jure gestionis (commercial activities of State); and (b) the immunity of a State from the jurisdiction of its own courts in regards to acts of state and matters arising from military operations. The principle of State immunity -- whether of the territorial state or of the foreign state -- is a survival of the period when the sovereign was considered to be above the law. This is no longer the position.
17. In the United Kingdom the principle of State immunity from the jurisdiction of the British Courts was founded on the doctrine of royal prerogative which in the words of Diceyt is 'The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the crown.' Prerogative in its absolute form is no longer recognised in that country except in matters arising from war in which the sovereign was or is engaged or from act of state. If property belonging to a citizen is taken or damaged or destroyed under orders of the crown, albeit in the exercise of the prerogative power, the owner of the property is entitled to be compensated unless such loss arose from war damage. Subject to such defence, the crown is no longer protected from claims/for compensation for the act of its servant if such act was performed negligently or ultra vires the statute creating the powers under which it is purported to have been done.
18. In a republican and democratic form of Government, as we have under our constitution, there is no justification for recognising the archaic theory of sovereign immunity which was founded on the feudalistic notions of justice in England It is highly doubtful whether such doctrine had ever struck roots in the jurisprudence of our country, for, as pointed out by the Supreme Court in State of Rajasthan v. Mst. Vidhyawathi (1962) Supp 2 SCR 989 : (AIR 1962 SC 933). In India ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India.'
19. All powers vested in the State are derived from the Constitution or the relevant statute. Under the Constitution, there is no scope for immunity based on any prerogative or arbitrary right. Any such right is alien to our system. Ours is a Government of laws and not of men. Except where special provisions have been made under the Constitution (e.g. Article 361), or a reasonable classification is made under a statute, treating the State or certain individuals as a special class and conferring upon them special privileges and exemptions or immunities, against a citizen the State has no right to immunity. The State is not protected from liability for the tortious act of its servant which is either ultra vires the statute granting the powers under which he is purported to have acted or is a negligent exercise of such powers: Home Office v. Dorset Yacht Co. Ltd. (1970) A.C. 1004 H.L. (E); per Lord Blackburn in Geddis v. Proprietors of Bann Reservoir (1878) 3 A. C. 430, 456. In other words the state is vicariously liable to third parties in such circumstances as would render a private employer liable.
20. The concept of sovereignty is not a satisfactory test for deciding questions of immunity. Sovereign exercise of power is not the dividing line between jurisdiction and immunity. As stated earlier, apart from constitutional or statutory provisions granting certain immunities or exemptions or privileges to the State or its instrumentalities, and with the exception of matters arising from war damage, the State, in relation to its citizens, has no immunity from liability or from the jurisdiction of its courts.
21. In the present case, the learned Judge, on the basis of the available evidence, came to the conclusion that the Adviser to the Governor at the material time was proceeding to Sultan's Battery on a private visit after attending a private function at Calicut. It was accordingly held that the driver of the jeep car escorting the Adviser was not performing any act which was referable to the exercise of a sovereign power. In our view, the learned Judge was perfectly justified in coming to such conclusion. There is no evidence to show that the Adviser or the driver of the jeep escorting him was performing any function which was attributable to an exercise of sovereignty. In our view, the learned Judge correctly held that the State was vicariously liable for the tortious act of the 2nd defendant and that both the defendants were liable in damages to the plaintiff. The appeal therefore fails and is dismissed with costs.