(a) The 'State Liability' under the Law of Tort has undergone metamorphosis. Explain with the help of case laws. (20 marks) (b)…

(a) Metamorphosis of State liability in tort

In England "the King can do no wrong" kept the Crown immune until the Crown Proceedings Act, 1947. In India Art 300 carries forward the pre-1950 position, and the law has moved from sovereign immunity to constitutional accountability.

1. Colonial base: in P&O Steam Navigation Co v Secretary of State (1861) the government was liable for dockyard workers who damaged a carriage, since a private person could run a dockyard. This created the line between immune sovereign functions and actionable non-sovereign ones.
2. Divergence after 1950: State of Rajasthan v Vidyawati (1962) held the State liable for a government jeep that killed a pedestrian. Kasturi Lal v State of UP (1965) held it not liable when a constable absconded with seized gold, because search and seizure are sovereign powers, though the Court urged legislation. The First Law Commission Report (1956) proposed a statute, but the Bills of 1965 and 1967 lapsed. Shyam Sunder (1974) treated famine relief as non-sovereign.
3. Erosion: N. Nagendra Rao v State of AP (1994) called the distinction outdated in a welfare State, kept immunity only for primary and inalienable functions such as defence and justice, and held the State liable for negligent custody of seized goods.
4. Constitutional tort: Rudul Sah (1983) awarded compensation under Art 32 for 14 years of illegal detention. Nilabati Behera (1993) held that compensation for custodial death is a public-law remedy based on strict liability to which sovereign immunity does not apply, confining Kasturi Lal to private law. D.K. Basu (1997) set arrest guidelines, Chandrima Das (2000) extended relief to a foreign national, and Challa Ramkrishna Reddy (2000) held that immunity cannot defeat a right-to-life claim.

The State is now vicariously liable on ordinary principles except for a narrow and doubted sovereign core, and rights violations attract constitutional compensation, supplemented by BNSS s.396 (earlier CrPC s.357A). A comprehensive statute is still awaited.

(b) Section 149 as an offence and Section 34 as evidence

BNS s.3(5) (earlier IPC s.34): when a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if he did it alone. It needs a criminal act by at least two, a prior meeting of minds that may form on the spot (Mahbub Shah 1945, Pandurang 1955), and participation (Barendra Kumar Ghosh 1925).

BNS s.190 (earlier IPC s.149): if a member of an unlawful assembly of five or more (BNS s.189, earlier s.141) commits an offence in prosecution of the common object, or one the members knew was likely, every member is guilty.

The reasons for the statement:

• Offence or rule of liability: s.149 creates a specific offence, since membership with the common object is itself the basis of guilt and the accused is charged under it with the substantive section (Nanak Chand v State of Punjab 1955). s.34 creates no offence. It is a rule of evidence attributing the act of one to all who shared the intention.
• Proof: under s.149, membership and the common object suffice, with no overt act needed (Masalti v State of UP 1964, Lalji 1989). Under s.34, common intention and participation must be proved from conduct.
• Scope: s.149 also covers offences known to be likely. s.34 needs a shared intention for the act done.
• Numbers: five for s.149, two for s.34.
• Conversion: if fewer than five are convicted, a s.149 charge may become a s.34 conviction where common intention is proved and there is no prejudice.

(c) Absolute liability and strict liability

**Strict liability (Rylands v Fletcher, 1868):** a person who brings onto land anything likely to do mischief if it escapes is liable for its escape without negligence. It needs a dangerous thing, escape and non-natural use of land. Defences include the plaintiff’s default, Act of God (Nichols v Marland 1876), act of a stranger (Box v Jubb 1879), consent and statutory authority. English law later added foreseeability (Cambridge Water 1994).

**Absolute liability (M.C. Mehta v Union of India, 1987, Oleum gas leak): after Bhopal (1984) and the Shriram leak (1985), a Constitution Bench held that an enterprise in a hazardous or inherently dangerous activity owes an absolute, non-delegable duty and is liable with none** of the Rylands exceptions. It alone can guard against the risk and profits from it, and compensation rises with its size and capacity. It was applied in Charan Lal Sahu (1990), Indian Council for Enviro-Legal Action (1996, with polluter pays) and the NGT order on the LG Polymers leak (2020), and is reflected in the Public Liability Insurance Act, 1991 and s.17 of the NGT Act, 2010.

Differences:

• Source: English common law against Indian constitutional jurisprudence.
• Who: anyone keeping a dangerous thing against hazardous enterprises.
• Escape and non-natural use: required against not required, so harm within the premises is covered.
• Exceptions: available against none.
• Damages: compensatory against deterrent and capacity-based.
• Rationale: risk from land use against enterprise liability and Art 21.