What do you understand by the term ‘Act of State’? How would you prove the fact of an Act of State? [BJS 1978]

Questions: What do you understand by the term ‘Act of State’? How would you prove the fact of an Act of State? [BJS 1978]

Find the answer to the mains question only on Legal Bites. [What do you understand by the term ‘Act of State’? How would you prove the fact of an Act of State?]

Answer

The Act of State doctrine is applicable to only those acts which are carried out by a government official or body. The act of the government officials will be considered as an act of State where the official is exercising his official functions. In deciding whether this doctrine is to be applied or not, the courts consider whether the government official was acting in his public capacity or not. If the official is acting for his own benefit instead of acting for the State’s benefit, then the doctrine of the Act of State will not apply to such acts.

Act of State is an exercise of sovereign power as a matter of policy or political expediency, which is not available against a citizen. This legal doctrine of act of state holds that the state or the sovereign can commit no legal wrong and is immune from civil suits and criminal prosecution. It is derived from the British common law principle, ‘rex non potest peccare’, which translates into ‘the king can do no harm. There are two reasons suggested for holding this doctrine truthful:

• As an attribute of sovereignty, the state could not be sued in its own courts without its consent,
• the award of compensation would affect the treasury of the Crown

However, acts authorized by statutes must be done carefully and without exceeding the powers granted by the statute, so that no unnecessary damage is done otherwise the person can be held liable.

The Constitutional provision that mentions the power and liability of the State with respect to suits filed by and against it, is Article 300. Article 300 provides for when the Government of India and/or the Government of any State may sue or be sued and that the same shall happen subject to any provision of an Act of the Parliament or Legislature of that State by the powers conferred to it by the Constitution.

An important judgment related to the act of state is of N. Nagendra Rao & Co. v State of Andhra Pradesh. The Supreme Court in this case held that when the citizen suffers any damage due to the negligent act of the public servants the State will be vicariously liable to compensate him and the principle of sovereign immunity will not exempt him from the liability. It was further observed that the sovereignty is vested in the people now and the court restricted the application of the doctrine of sovereign immunity to those cases in which the act in question is related to a “function for which it [the state] cannot be sued in the court of law.” These functions included: “administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government.”

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. Constitutional Law Mains Questions Series Part-I
2. Constitutional Law Mains Questions Series Part-I
3. Constitutional Law Mains Questions Series Part-II
4. Constitutional Law Mains Questions Series Part-IV
5. Constitutional Law Mains Questions Series Part-V
6. Constitutional Law Mains Questions Series Part-VI
7. Constitutional Law Mains Questions Series Part-VII
8. Constitutional Law Mains Questions Series Part-VIII
9. Constitutional Law Mains Questions Series Part-IX
10. Constitutional Law Mains Questions Series Part-X