Introduction 

• The fundamental principle in tort law establishes that every individual has the right to sue and can be sued.  
• However, this general rule comes with several notable exceptions based on personal capacity.  
• Understanding these exceptions is crucial for legal practitioners and individuals seeking to navigate the tort law system effectively. 

Persons Who Cannot Sue 

Convicts and Prisoners: 

• While convicts retain many fundamental rights, their capacity to sue is limited.  
• As established in D.B.Y. Patnaik v. A.P. (1974), conviction does not strip individuals of all fundamental rights. However, their ability to sue may be restricted in certain circumstances: 
  • They can maintain actions for personal wrongs like assault or slander. 
  • They retain rights to property-related actions. 
  • They maintain fundamental rights under Article 21 of the Constitution of India (COI). 

Alien Enemy: 

• An alien enemy's capacity to sue is determined by: 
  • Their nationality. 
  • Place of residence.   
  • Government permission. 
• They can only sue if residing in India with explicit government permission. 

Married Women: 

• The capacity of married women to sue has evolved: 
  • Under traditional law, they required their husband's joining as a party. 
  • The Married Women's Property Act, 1874 allows them to sue as feme sole. 
  • Different personal laws govern Hindu, Sikh, Jain, and Muslim women. 

Bankrupt Individuals: 

• Bankrupts face specific restrictions: 
  • Cannot sue for property-related wrongs. 
  • Property rights vest in a Trustee or Official Assignee. 
  • Can be sued for torts committed before or during bankruptcy. 

Minors: 

• Minors have special considerations: 
  • Can sue through a next friend (usually father). 
  • Rights of unborn children are recognized in Hindu Law. 
  • Special protections exist under criminal law for unborn children. 

Corporations: 

• Corporations have distinct legal standing: 
  • Can sue for specific torts affecting their interests. 
  • Can sue for malicious presentation of winding-up petitions. 
  • Cannot sue for certain personal offenses like corruption charges. 

Persons Who Cannot Be Sued 

Sovereign or Constitutional Heads: 

• The President and Governors enjoy immunity for official acts 
• Former Indian State rulers require government permission for suits 
• Based on the principle "The King can do no wrong" 

Foreign Sovereigns and Diplomats: 

• Protected by: 
  • Diplomatic immunity. 
  • Requirement of government permission. 
  • Protection extends to family members. 

Minors: 

• Special considerations apply: 
  • Generally liable for torts like adults. 
  • Age and mental capacity relevant for specific torts. 
  • Defense available if lacking sufficient understanding. 

Persons with Mental Illness: 

• Liability depends on: 
  • Nature and quality of the act. 
  • Understanding of consequences. 
  • Degree of mental illness. 
  • Voluntariness of actions. 

Intoxicated Persons: 

• Generally, not exempt: 
  • Drunkenness is not a valid defense. 
  • Exception exists for involuntary intoxication. 
  • Must prove inability to distinguish right from wrong. 

Conclusion 

Personal capacity in tort law presents a complex framework of rights and restrictions. While the general principle allows universal participation in the legal system, various exceptions exist based on personal status, mental capacity, and legal standing. These exceptions serve to protect vulnerable individuals while maintaining the integrity of the legal system. Understanding these nuances is essential for ensuring justice and proper legal representation in tort cases.