SOVEREIGN IMMUNITY

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THIS ARTICLE WAS WRITTEN BY RACHIT SHARMA, A STUDENT OF DELHI METROPOLITAN EDUCATION, GREATER NOIDA. 

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. This principle is commonly expressed by the popular legal maxim “rex non potest peccare,” meaning “the king can do no wrong.” The doctrine of sovereign immunity is based on the Common Law principle borrowed from the British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or 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. This doctrine held dead in Indian courts since the mid nineteenth century until recently. When a genuine claim for damages was brought to the courts, and it was refused on the basis an ancient doctrine seemingly having no relevance, there were demands for review. The Indian courts, in order to not let genuine claims be defeated, kept narrowing the scope of sovereign functions, so that the victims would receive damages. The Law Commission of India too, in its very first report, recommended the abolition of this outdated doctrine. But for various reasons, the draft bill for the abolition of this doctrine 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:

The State generally benefits from two forms of immunity –

1)      Immunity to jurisdiction –

A state’s immunity to jurisdiction results from the belief that it would be inappropriate for one State’s courts to call another State under its jurisdiction. Therefore, State entities are immune from the jurisdiction of the courts of another State. However, this immunity can generally be waived by the State entity. 

2)      Immunity from execution-

The State will also have immunity from execution, as it would be improper for the courts of one State to seize the property of another State. Immunity from execution may also generally be waived.

EVOLUTION

Pre Constitutional Era –

In India, the story of the birth of the doctrine of Sovereign Immunity begins with the decision of Peacock C.J. in P. and O. Navigation Company v. Secretary of State for India, in which the terms “Sovereign” and “Non-sovereign” were used while deciding the liability of the East India Company for the torts committed by its servants. In this case the provision of the Government of India Act, 1858 for the first time came before the Calcutta Supreme Court for judicial interpretation and C.J. Peacock determined the vicarious liability of the East India Company by classifying its functions into “sovereign” and “non-sovereign”.

Two divergent views were expressed by the courts after this landmark decision in which the most important decision was given by the Madras High Court in the case of Hari Bhan Ji v. Secretary of State, where the Madras High Court held that the immunity of the East India Company extended only to what were called the ‘acts of state’, strictly so called and that the distinction between sovereign and Non-sovereign functions was not a well-founded one.

No attempt however has been made in the cases to draw a clear and coherent distinction between Sovereign and Non-Sovereign functions at all.

Post-Independence –

After the commencement of the Constitution, perhaps the first major case which came up before the Supreme Court for the determination of liability of Government for torts of its employees was the case of State of Rajasthan v. Vidyawati. In this case, court rejected the plea of immunity of the State and held that the State was liable for the tortuous act of the driver like any other employer.

Later, in Kasturi Lal v. State of U.P., the Apex Court took a different view and the entire situation was embroiled in confusion. In this case, the Supreme Court followed the rule laid down in P.S.O. Steam 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.

In practice, the distinction between the acts done in the exercise of sovereign functions and that done in non-Sovereign functions would not be so easy or is liable to create considerable difficulty for the courts. The court distinguished the decision in Vidyawati’s case as it involved an activity which cannot be said to be preferable to, or ultimately based on the delegation of governmental powers of the State. On the other hand, the power involved in Kasturilal’s case to arrest, search and seize are powers characterized as Sovereign powers. Finally the court expressed that the law in this regard is unsatisfactory and the remedy to cure the position lies in the hands of the legislature.

The Courts in later years, by liberal interpretation, limited the immunity of State by holding more and more functions of the State as non-Sovereign.

To ensure the personal liberty of individuals from abuse of public power, a new remedy was created by the Apex court to grant damages through writ petitions under Article 32 and Article 226 of the Constitution. In the case of Rudal Shah v. State of Bihar, the Supreme Court for the first time awarded damages in the writ petition itself.

In Bhim Singh v. State of Rajasthan, then principle laid down in Rudal Shah was further extended to cover cases of unlawful detention. In a petition under article 32, the Apex court awarded Rs. 50,000 by way of compensation for wrongful arrest and detention.

The latest case of State of A.P. v. Challa Ramakrishna Reddy on the point clearly indicates that the distinction between Sovereign and non-Sovereign powers have no relevance in the present times. The Apex Court held that the doctrine of Sovereign immunity is no longer valid.

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 wrong, the diversion of funds required for other governmental purposes could bankrupt the State and retard its growth, the State could perform its duties more efficiently and effectively if it were not faced with the threat of a floodgate of actions involving tort liability, and it was more expedient for an individual to suffer than for society to be inconvenienced.

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 tortuous conduct merely because of the status of the wrongdoer. Sovereign immunity contradicts the essence of tort law that liability follows negligence and that individual 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.

Although we abolish the State’s sovereign immunity from tort liability, our decision should not be interpreted as imposing tort liability on the State for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions.

“While the rule is that a suit cannot be maintained against the sovereign without its consent, it is equally well established that a clear official duty, not involving the exercise of discretion, may be enforced when performance thereof is arbitrarily refused, and that, if a person will receive injury because an official is about to violate an official or legal duty, for which adequate compensation cannot be had at law, such conduct may be enjoined.”

Furthermore, although we abrogate the State’s sovereign immunity from tort liability, I conclude that abrogation should be prospective so that the Legislature can implement and plan in advance by securing liability insurance, or by creating funds necessary for self-insurance.