Doctrine Of Sovereign Immunity: The Development In India

Doctrine Of Sovereign Immunity: The Development In India | Overview

• Introduction: Doctrine Of Sovereign Immunity
• Doctrine Of Sovereign Immunity in England
• Doctrine Of Sovereign Immunity in India
• Landmark Cases
• State of Rajasthan v. Vidyawati (1962)
• Kasturi Lal Ralia Ram v. State of U.P (1965)
• Conclusion

The doctrine of Sovereign Immunity holds that the state or the sovereign can commit no legal wrong and is immune from civil suits and criminal prosecution.

The socio-legal structure today, demands an echelon of the society that is free of inequalities, prejudice and bigotry. An essential component that would help in nurturing such a community would be the contribution of the politically strong and educated class, that would uphold such ideals and thus, the sanctity of our Constitution. The doctrine of Sovereign Immunity, if practised in a rightful manner, takes a step towards the formation of the same.

Introduction: Doctrine Of Sovereign Immunity

This legal doctrine 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’.^[1]There are two reasons suggested for holding this doctrine truthful:

1. As an attribute of sovereignty, the state could not be sued in its own courts without its consent,
2. the award of compensation would affect the treasury of the Crown.^[2]

This concept is also founded on the theory that the King (of England in this context) rules by divine right and therefore could not do any wrong. This doctrine was brought to India by the Britishers who ruled upon the Indian population and thus, Indian law acquired the doctrine of sovereign immunity after Independence from colonial rule.^[3]

I. Doctrine Of Sovereign Immunity in England

The English themselves have abandoned this doctrine and have created a system with a statute that would serve the needs of the modern society. This Statute is the Crown Proceedings Act, 1947. This Act lays down various situations where the Crown may be held liable.^[4]

The process of transition from absolute sovereignty to restrictive sovereignty was gradual in the United Kingdom. It culminated with the passing of the State Immunity Act, 1978. Various decisions in the United Kingdom rejected the absolute approach to state immunity in favour of the restrictive approach.^[5] These decisions got legislative validation and support via the State Immunity Act, 1978. This Act lays down 12 major exceptions in which the State is allowed to claim State Immunity.

II. Doctrine Of Sovereign Immunity in India

In an attempt to ensure that genuine victims would receive rightful damages, the Indian Courts kept narrowing the scope of sovereign functions. The first report of the Law Commission recommended the abolition of the doctrine. However, the bill for the abolition of the doctrine could not be passed in the Parliament and therefore, it was left upon the Courts to decide the fate of the doctrine based on its compatibility with the Constitution of India.^[6]

• Suing and getting sued by the government: The Constitution of India

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.

If it is the Government of India that is being sued or suing, then the same would happen in the name of Union of India and if the same is happening with a State Government, then the name used would be that of the State. Such suits can be instituted only in relation to the respective affairs of the Government and the like cases that could be instituted against or by the Dominion of India and its provinces before the commencement of the Constitution of India. So long as the Parliament does not enact a law with respect to this, the legal position is the same as it existed before the commencement of the Constitution.^[7]

• Indian Patent Law and State Immunity

The Indian patent law also has provisions dealing with the liability of the State when it infringes patent rights. Section 47 of the Indian Patent Act,1970 provides a condition for being granted patent rights, “any machine, apparatus or other article in respect of which the patent is granted or any article made by using a process in respect of which the patent is granted, maybe imported or made by or on behalf of the Government for the purpose merely of its own use”. Here the ambit of the phrase ‘use of government’ is left open-ended and there is no provision for compensation to the patentee where such use is made.

Landmark Cases

1. State of Rajasthan v. Vidyawati (1962)

This was the first case before the Supreme Court of India post Independence with respect to this subject matter. In this particular case, the driver of a jeep which was owned and maintained by the state of Rajasthan was driven negligently while driving to the residence of the Collector and fatally injured a pedestrian. Rejecting the State’s contention of sovereign immunity, the Court said that it was not a sovereign function to drive a jeep and the state must incur liability for its actions. The Court also added that in present times, the State has more pressing functions like welfare of its citizens and old feudalistic notions of justice cannot be sustained.^[8]

2. Kasturi Lal Ralia Ram v. State of U.P (1965)

In another case, Kasturi Lal Ralia Ram v. State of U.P, a person was taken into custody on suspicion of being in possession of stolen property. His property, including some amount of gold and silver, was confiscated and stored/deposited in a malkhana until the disposal of the case. The gold and silver was misappropriated by a police constable who stole the belongings of the person and fled away to Pakistan.

The Appellant brought a case against the State of Uttar Pradesh for return of the gold and silver and as an alternative, claimed damages for the loss caused by the negligence of the Meerut Police. While the trial Court decreed the suit, the High Court reversed the judgement on appeal. When the case was brought before the Supreme Court, the Apex Court noted that the police officials had been negligent in carrying out their duties and had also flouted the Uttar Pradesh Police regulations.

In spite of this, the Court held that the tortious acts were committed by the police officials in discharge of sovereign power as their employment was of a category which could claim the special characteristic of sovereign function and therefore, the State was not liable for the damages claimed by the Appellant.^[9]

• Sovereign Immunity And The Violation Of Fundamental Rights: Article 32 And 226

It is pertinent to note that the matter of Sovereign Immunity does overlap with the violation of fundamental rights at the hands of the State and in such a scenario, claiming sovereign immunity as a defence in matters of custodial death and unlawful detention was a huge blot on the commitment to respect and abide by human rights for the country and its institutions.

An important case in this respect is Nilabati Behra v. State of Orissa.^[10]

The facts of the case are that the petitioner’s son was taken into police custody for investigation in the offence of a theft in the village. The next morning, he was found dead on the railway tracks with his hands handcuffed. The Court awarded compensation to the Petitioner for the death of her son in police custody.

The Court also held that a claim in public law for compensation for contravention of human rights and violation of fundamental freedoms based on a Constitutional remedy that was meant to enforce fundamental rights was distinct from, and in addition to the remedy in private law for damages because of a tort. The Court thus held that the principle of sovereign immunity does not apply to the public law remedies under Article 32 and Article 226 for the enforcement of fundamental rights.

In the state of Andhra Pradesh v. Challa Ramakrishna Reddy, the petitioner and his father were lodged in a jail and because of an attack on them, the petitioner’s father lost his life while the petitioner suffered serious injuries. The victims had previous knowledge of the act and had even conveyed the same to the jail authorities.

However, the jail authorities had not taken their apprehension seriously and there was a lapse of security. On the grounds of negligence, a suit was filed by the Petitioner. Even though the trial court had made an observation about the lack of security in guarding the Petitioner and his father and that the same negligence was the reason behind the loss of life, the Court held that since the arrest and detention of the Petitioner and his father were sovereign functions of the state, no state liability followed.

The High Court set aside the judgement of the trial court and held that since the Right to Life was a fundamental right enshrined in Article 21, the same could not be violated except through a procedure established by law and the negligence due to which the Petitioner’s father lost his life was violative of Article 21. It also held that the concept of sovereign immunity could not override the claim for violation of fundamental rights.

On appeal by the State of Andhra Pradesh, the Supreme Court dismissed the appeal and ruled that the concept of the King not being capable of doing any harm and the Crown not being answerable in tort did not apply in Indian legal system because, in India, power rests in the hands of the people, who happen to elect their representatives to run the Government. This Government has to act in accordance with the provisions of the Constitution and shall be answerable for any violation thereof.^[11]

• Government Contracts And Sovereign Immunity

Government contracts and sovereign immunity do not go hand in hand. With respect to government contracts, no sovereign immunity can be claimed by the Union Government, State Governments, Public Sector Undertakings or public bodies. Any dispute arising in these matters have to be resolved in accordance with the general law.

The only difference is that the period of limitation that applies to the Government in filing suit is thirty years as against three years by others. Additionally, neither the President nor the Governor or any other person executing such contract shall be personally liable in respect of any contract or assurance made or executed.^[12]

The Supreme Court has held that no civilised system should permit the Executive of a nation to play with the lives and properties of the people and claim to be sovereign in the same breath. Placing the State above the law is unjust and unfair towards the citizen. No citizen should be left high and dry due to loss suffered on account of the negligence of the officers of that State.

Providing a remedy in such cases is a must as the same is the equivalent of holding the democratically elected state accountable for its actions. Therefore, barring functions such as administration of justice, maintaining law and order, repressing crime, which are primary and inalienable features of a Constitutional Government, the State cannot claim immunity in actions that it commits or omits to do negligently.^[13]

III. Conclusion

Historically, the justification to the doctrine of sovereign liability lies in saying that the diversion of funds for compensating citizens under tort liability could bankrupt the State and retard its growth. Additionally, the State could perform its duties more efficiently and effectively if it was not dragged into litigation and threatened with legal action for every function that is carried out. It was accepted, therefore, that an individual could suffer but society must not be inconvenienced.

The doctrine of sovereign immunity has been held to be outdated and inapplicable in modern society, which is built upon the trust and for the welfare of the common man. Like the United Kingdom, Indian Parliament should also pass an Act that would demarcate what constitutes as a sovereign function worthy of claiming State Immunity and what does not.

The same would not only bring about clarity in the minds of people but also save the judicial system from a load of cases from this matter. The law must cater to liability insurance or create such resorts in the form of funds where self-insurance is possible.

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 and care.

‘To err is human’ and this applies to the people who work in the administration of the State’s functions as well. Therefore, it is impossible to run on a doctrine that holds that the State can do no wrong. The only exception to this rule is, during the cases of extreme emergency like war. In these cases, the State action is immuned on the grounds of ‘privatum incommodum probono publico pensatur’ which means that interests of the individual must give way to the accommodation of the public.

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^[1] Guy I. Seidman, The Origins of Accountability: Everything I Know About the Sovereign’s Immunity, I Learned from King Henry III, 49 ST. LOUIS U.L.J. 393 (2005)

^[2] Marasinghe, L. (1991), The Modern Law of Sovereign Immunity,The Modern Law Review, 54: 664-684.

^[3] .Krishna, Ketana, Development of the Doctrine of Sovereign Immunity in England and India (March 3, 2012), available at SSRN: https://ssrn.com/abstract=2402176 or http://dx.doi.org/10.2139/ssrn.2402176

^[4] William Wade, The Crown, Ministers and Officials: Legal Status and Liability, in The Nature of the Crown: A Legal and Political Analysis 25-26 (Maurice Sunkin & Sebastian Payne eds., 1999)

^[5] Kantorowicz, E. H. (1957). The king’s two bodies: A study in mediaeval political theology. Princeton, N.J: Princeton University Press

^[6] Law Commission of India, First Report, pages 40-42, para V

^[7] Article 300, The Constitution of India, 1950

^[8] State of Rajasthan v. Vidyawati, AIR 1962 SC 933

^[9] Kasturi Lal Ralia Ram v. State of U.P, AIR 1965 SC 1039

^[10] Nilabati Behra v. State of Orissa, 1993 AIR 1960

^[11] State of Andhra Pradesh v. Challa Ramakrishna Reddy, AIR 2000 SC 2083

^[12] Mulla, Dinshah F, and Kaikobad S. Shavaksha. Mulla on the Indian Contract Act. Bombay (India: N.M. Tripathi, 1967. Print.

^[13] N. Nagendra Rao & Co. v. State of A.P, 1994 SCC (6) 205

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1. Law of Torts; Notes, Case Laws And Study Material