Legal Maxim of ‘Rex non-potest peccare’
By Shweta Nair
Meaning of ‘Rex non-potest peccare’ is that the King can do no wrong.
It is an ancient and fundamental principle of English Constitution that the King can do no wrong. It means that the king is not answerable personally to his people as he is considered to be incapable of doing any wrong or any improper thing for any suppose wrong. Justice Holmes has stated that the ground of exemption appears to be neither logical nor practical and the total immunity of the king from liability for tort is not acceptable in the modern times. This doctrine is now practically abolished by the Crown’s Proceeding Act of 1974. After passing of this act, now the crown, the king can be made liable like a private person in the following circumstances:
Where a private employer would have been liable for torts of his servant to a third person.
Where a private employer would have been liable in respect of any breach of duties which he owes towards his servant by reason that he being the employer.
Where the occupier of the property would have been liable with respect to his property relating to ownership, occupation, possession and control of property.
Indian Law says,
It does not recognize this principle that the King can do no wrong.
Under Article 361 of the Constitution of India, the President, the Governor and Raj Pramukhas are not answerable to any court.
For the exercise and performance of the powers and duties of their office or
For any act done by them in the exercise of this power and duties.
Article 300 of the Indian Constitution provides that the Government of India and the Government of the states may sue or be sued.
Kasturi Lal v. State of U.P.
The police officers of the state of U.P. acting in the exercise of their statutory powers seized gold from Kasturi Lal who is the appellant and due to negligence of the police officers in keeping the gold in safe custody, they were not able to return back the gold to Kasturi Lal. So Kasturi Lal filed a suit to recover the gold or the value of the gold in the Supreme Court against the state. The Supreme Court held that the state of U.P. is not liable under the following grounds: -
The police officials were acting in discharge of their statutory powers.
The police officials while keeping the property in the police malkhana is a sovereign power.
The act was committed by the employees of the state during the course of employee which falls under sovereign power. Therefore, Kasturi Lal, the appellant could not succeed in his claim.
The question as to what is traditional sovereign function was decided by the Supreme Court, which held that making laws, administration of justice, maintenance of order, repression of crime, making treaties of peace and all other consequential questions fall within the ambit of traditional sovereign functions but welfare activities like famine relief work or routine government activity like maintenance of vehicles for use by the officials does not fall within the ambit of sovereign function.
The State of Rajasthan v. Vidyawati
The defendant was a motor driver employed on probation by the state of Rajasthan while he was driving a jeep car to the workshop for necessary work. He knocked down one Mr. Jagdish Lal who was walking on the footpath by the side of the public road. On account of multiple injuries suffered in the accident, Jagdish Lal died 3 days later. The widow of Jagdish Lal filed a suit against the defendant and the state of Rajasthan for damages to the said tort.
The Supreme Court held that the state was liable for the tortious act of its servant like any other employer would have been liable on the ground that the principle, the king can do nay wrong, has no place in the reapplicant Constitution of India.
In short, we take into account Indian Legal Position,
Article 300 of the Constitution lays down that the state may sue or be sued.
In determining the liability of the state, for the torts of its servant, the old distinction between sovereign and non-sovereign functions still holds good.
The state would not be liable for the acts of its servant done in the exercise of sovereign power.
The government is liable for the torts of its servant done in the course of its transaction which transaction, even a private person can engage in.
The government is liable to restore back the property or money which has been wrongfully obtained either by it or by its servant.
The government is liable for any injury, caused to nay person resulting from an act done by its servant even if the act is done under the color of the Municipal Law.