sofiabhambri
- May 25, 2021
- 8 min read

Sovereign Immunity in India

The concept of sovereignty immunity was developed in the common law jurisprudence [1]. In earlier times, there were no democracy, elected representatives, fundamental rights etc Literature of the past has clearly shown that the king had all power and was responsible for the well-being of his citizens and his territory. It was believed that the King is the servant of God who cannot do any wrong, which is commonly expressed as “rex non protest peccare", which means ‘the king can do no wrong’. The principle also extends to say that a king can be held liable neither for his misconduct or negligence nor his servant’s misconduct or negligence.

Sovereign Immunity:

Sovereign immunity or crown immunity is a legal doctrine by which the state or the sovereign cannot commit a legal wrong and is immune from civil suit or criminal prosecution [2]. This doctrine of sovereign immunity is based on the common law principle, “the king can do no wrong” which is commonly expressed by the popular legal maxim “rex non potest peccare”. It is a justification for wrongs committed by the state or its representatives, seemingly based on grounds of public policy [3]. According to this doctrine, a sovereign or state cannot be held liable for personal negligence or misconduct and also cannot be held responsible for the negligence and misconduct of his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a state cannot be sued in its own courts without its consent [4].

This doctrine was held dead in Indian courts since the Mid-19th century until recently. When a claim for damages was brought to the court with genuine reasons, and it was refused on the basis of an ancient doctrine seemingly having no relevance, there is bound to be resentment and demands for review [5]. The Indian courts, in order to uphold the genuine claims, keep narrowing the scope of sovereign functions, so that the victims would receive damages. The law commission in its first report had recommended for abolition of this doctrine but due to various reasons, it was never passed and thus it was left to the courts to decide on the compatibility of this doctrine in accordance with the constitution of India.

Types of sovereign immunity:

Immunity to Jurisdiction:

A state’s immunity to jurisdiction results from the belief that it would be inappropriate for one state’s court to call another state under its jurisdiction. Therefore, state entities are immune from the jurisdiction of the courts of another state. However, by the state entity, this immunity can be waived. In many cases, the court refers to arbitration as sufficient to demonstrate a waiver of immunity to jurisdiction by the state.

However, certain developing countries may be hesitant to submit themselves to international arbitration, believing that arbitration would not provide a fair hearing and is dominated by western principles [6]. But these developing countries may feel more secure submitting to arbitration under the UNCITRAL rules, which are often considered more culturally neutral than those of the ICC or other Western tribunals [7].

Immunity from execution:

Immunity from execution may also generally be waived. The state will also have immunity from execution, as it would be improper for the court of one state to execute an order to seize the property of another state.

Evolution of the Doctrine of Sovereign Immunity:

Pre-constitutional era:

In India, the doctrine of sovereign immunity was born in the case of P. and O. Navigation company V. Secretary of state for India, in which the term “sovereign” and “Non-sovereign” were used while deciding the liability of the East India Company for the wrong committed by its servant. In this case, the Calcutta Supreme court interpreted the provision of Government of India Act, 1858 for the first time and Chief Justice Peacock determined the vicarious liability of the East India Company by clarifying its functions into “sovereign” and “Non- sovereign”.

After this judgement, there were 2 different views expressed by the courts in which the most important decision was taken by the Madras High court. In the case of Hari Bhanu Ji V. Secretary of State, the Madras High court held that the immunity of East India Company extended only to what was called the ‘acts of state’, strictly so-called and that the distinction between sovereign and Non-sovereign functions was not a well-founded one [8].

In order to provide a clear and coherent distinction between sovereign and non-sovereign, no attempts were made.

Post-Independence:

After India gained its independence and formed its constitution, the first case which came up before the Honourable Supreme court regarding the determination of liability of the state for the torts of its employees was the case of the State of Rajasthan V. Viyawaki. In this case, the Honourable Supreme court rejected the plea of immunity of the state and held that the state was liable for the tortious act of the driver like any other employer[9].

Later in Kasturi Lal V. State of U. P, the Apex court took a different view and followed the rule laid down in P.S.P Stream Navigation case by distinguishing sovereign and non-sovereign functions of the state and held that abuse of police power is a sovereign act, therefore state is not liable [10].

The courts of India in later years limited the immunity of the state by holding more and more functions of the state as non-sovereign through liberal interpretation. To protect an individual’s liberty from abuse by public power, the apex court grants damages through writ petitions under Article- 32 and Article- 226 of the constitution. In the case of Rudal Shah V. State of Bihar, the Honourable Supreme court for the first time awarded damages in the writ petition itself [11].

In the Bhim Singh V. State of Rajasthan, the principle laid down in the case of Rudal Shah V. State of Bihar was further extended to cover cases of unlawful detention[12]. In the case of the State of A.P. V. Challa Ramakrishna Reddy, the apex court held that the doctrine of sovereign immunity is no longer valid [13].

In recent developments, courts have started narrowing the scope of sovereign immunity rather than overruling Kasturi Lal. Though, there were numerous disapprovals at the principle of Kasturi Lal in a number of cases [14], the most explicit disapproval came in the case of State of Andhra Pradesh V. Challa Ramakrishna Reddy.

The legislation of the doctrine of sovereign immunity in India can be found in the mentioned provisions and statutes,

Section- 86 of the Code of Civil Procedure 1908 (CPC) states, no suit shall be made/ instituted against a foreign state without prior written consent of the government and
The Diplomatic Relations (Vienna Convention) Act 1972, incorporates certain specified immunities available to diplomatic missions and their members in India pursuant to the Vienna Convention on Diplomatic relations, 1961[15]. Articles of this convention such as Article- 29, 30, 31, 32, 37, 38 and 39 have been given the force of law in India by extending the scope of sovereign immunity to diplomatic agents, their families, members of staff and servants.

In Mirza Ali Akbar V. United Arab Republic & Anr, a five-judge bench of the Honourable Supreme court held that the Section- 86(1) of the code of civil procedure modifies the international doctrine of sovereign immunity to some extent and it is not open for a foreign state to rely upon the doctrine of sovereign immunity under international law, even though the case is instituted with consent [16].

Sovereign Functions & Non-Sovereign Functions

Need for Distinction

The Supreme Court has emphasized upon the significance of making such a distinction as in the present time when, in the pursuit of their welfare ideal, the various governments “naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of governmental activities which have no relation with the traditional concept of governmental activities in which the exercise of sovereign power is involved. Therefore, it is necessary to limit the area of sovereign powers, so that acts committed in relation to “non-governmental and non-sovereign” activities did not go uncompensated.

Interpretation

The immunity of the crown in the United Kingdom was based on the feudalistic notions of justice, namely, that the King was incapable of doing wrong, now that we have, by our constitution, established a Republican form of Government, and one of its objectives is to establish a socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable for its acts.

However, as the Competition Act, 2002, specifies that any activity of the Government relatable to the sovereign functions of the Government including all departments of Central Government dealing with atomic energy, space, defense and currency are excluded from the Act’s purview, establishing a distinction between the sovereign and no sovereign functions becomes inevitable. Thus, an attempt has been made to distinguish the sovereign and non-sovereign functions with the help of principles laid down in the various judgments. On the question of ‘what are sovereign function’, different opinions have been given time and again and attempts have been made to explain in different ways.

Limits of sovereign immunity:

The first test to analyse whether a particular case falls under the principle of sovereign immunity, the facts and circumstances of the cases must be taken into account and the authorities must explain why the suit must be initiated. After this, the government decides whether to accept or refuse the application. After the government makes its decision, judicial review will be made which is considered as the second stage of testing the case where if the courts believe that the government has not passed a right decision, they can give the matter back to the government to reconsider and pass a fresh order [17].

Sovereign immunity is a court-originated common law doctrine. In the past, it was justified on the ground that the King can do no wrong but today it is not. It forms a tort liability, and India has adopted a restricted concept of sovereign immunity. The privilege of sovereign immunity in India extends to matters relating to the performance of sovereign functions of foreign states and excludes matters pertaining to commercial or contractual transactions undertaken by foreign states and their instrumentalities in India [18].

Conclusion

Sovereign immunity is a common-law doctrine which originated in court decisions. Historically, the doctrine of sovereign immunity has been justified on the grounds that the King could do no ronggengs rendered by the Apex Court.

Whatever justifications initially existed for sovereign immunity; they are no longer valid in today’s society. Sovereign immunity from tort liability. Perpetuates injustice by barring recovery for tortious conduct merely because of the status of the wrongdoer. Sovereign immunity contradicts the essence of tort law that liability follows negligence and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. We conclude that the State’s sovereign immunity for tort liability is outdated and is no longer warranted.

Thus, the doctrine of sovereign immunity has been held to be outdated and inapplicable in modern society. As this modern society is built upon the trust for the welfare of the common man the modern state is not a police state. It is a social-welfare state. It ought to take care of the citizens from cradle to death, especially because it is chosen and voted into power based on that assumption of reciprocal consideration.