Tortious liability is the legal responsibility of the State for any damage or harm caused to persons

or their property because of wrongful omissions or acts. The word tort is derived from the Latin
word ‘Tortum’ which means ‘to twist’. According to Salmond, “A tort is a civil wrong for which the
remedy is an action for unliquidated damages and which is not exclusively the breach of a contract,
or the breach of a trust, or the breach of other merely equitable obligation.” Tortious liability is an
essential aspect as it ensures that the State is held accountable for its actions and provides a legal
remedy to the victims. India’s tortious liability of the state has evolved through judicial
interpretations and landmark judgments. Under British Rule, the concept of sovereign immunity
protected the State from being held liable for its wrongful acts.

After India gained independence in 1947, sovereign immunity was gradually curtailed.
The Constitution of India provided for fundamental rights and established the State's liability for
violating these rights. In the M.C. Mehta vs. Union of India (December 20, 2986) case, Justice
Bhagwati said “We have to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialized economy. We cannot allow our
judicial thinking to be constricted by reference to the law as it prevails in England or for the matter
of that in any other foreign country...We are certainly prepared to receive light from whatever
source it comes but we have to build up our own jurisprudence.” This article discusses the key
elements of tortious liability and different types of tortious liability along with important landmark
cases of the Supreme Court.

Key elements of Tortious liability

• Duty: It is one of the most important elements of Tortious liability which illustrates that
one person must owe some duty or obligation to another. Initially, one has to identify
whether a person (defendant) owes any duty of care to another person (plaintiff). In case
the defendant fails to fulfill that duty then he/she can be held liable. Similarly, like any
other entity, the Government owes a duty of care towards its citizens. No direct
relationship between the defendant and the plaintiff is required as the duty of care is
imposed by the law.
• Breach of Duty: In case there is a breach of duty (duty of care) then tortious liability arises.
If it is proven that the government entity breached its duty of care then it leads to failure
resulting in harm to the individuals.
• Cause: The Government entity’s breach of duty must be the cause of damage or harm to
its citizens. In other words, a defendant’s breach of duty must cause harm or injury to the
plaintiff which means there must be a direct link between them.
• Damage or Harm or Injury: To ensure that the government is liable for the breach of its
duty of care, the citizens must have suffered actual loss, pain, damage, or violated their
legal rights. The damage can either be physical, financial, or emotional.

Types of Torts
Based on the nature of the wrongful act committed and the damage it causes, torts are classified
into various types. Some of the commonly defined types of torts are discussed as follows:
Intentional Torts

It is an action committed with the intention to cause damage or injury to another person. This
means any wrongful act committed (by tortfeasor) with an intent to cause harm to the plaintiff is
known as intentional tort. Some of the examples of intentional tort are as follows:

• Battery: Harmful or offensive physical contact with another person with an intention to
cause harm is called a battery. Some of the common examples of battery are throwing
water over a person, punching on the face, throwing a chair, hitting someone with a stick,
and pushing a person with force so that he/she falls.
• False Imprisonment: Confinement of a person without lawful jurisdiction as well as without
his will is known as false imprisonment. To constitute a tort of false imprisonment, it is
not necessary to put an individual behind bars whereas a mere impossibility of escape
from a certain area is sufficient to establish the false imprisonment tort.
• Assault: In assault, there is no actual physical contact rather there is an intent to cause
apprehension of offensive contact. For instance, if one person threatens another person
to slap then the latter will have been assaulted.
• Trespass: Unreasonable interference or unauthorized entry of an individual onto someone
else’s property resulting in exploitation of his right to enjoy the benefit of property is
known as trespass. It is of three types, Trespass to person (invasion of an individual’s
right to freedom), Trespass to land (unauthorized or unlawful interference in someone’s
property or causing damage to the property), and Trespass to chattels (Interfering with
the property of another person and causing damage to the property or taking their
belongings).
• Defamation: An act of causing harm to the reputation of another person by making false
statements either in written (libel) or verbal (slander) form. In case, defamation charges
are proved against the defendant then compensation can be given to the plaintiff.

Negligence

Negligence occurs when an individual fails to exercise reasonable care resulting in harm to another
individual or their property. To establish this type of tort, Duty, breach of duty, causation, and
damages are the elements that are required to be proved.

Strict Liability

In strict liability, a person is held legally responsible for the damage caused by the action
regardless of the intention or level of care exercised. Herein, a plaintiff does not need to prove the
occurrence of the tort and he/she can directly sue the defendant for the same. Strict liability does
not require an element of negligence or intent and defendant can be held liable for the
consequences of their actions. To constitute the tort of strict liability, there must be an availability
of a dangerous thing on an individual’s land, the thing must have escaped and there is no natural
use of land.