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Also while studying various cases in the Pre and Post Constitution era we have seen

distinction being made between the Sovereign and Non-Sovereign functions of the state.
Sovereign functions are those actions of the state for which it is not answerable in any
court of law. For instance, acts such as defense of the country, raising and maintaining armed
forces, making peace or war, foreign affairs, acquiring and retaining territory, are functions
which are indicative of external sovereignty and are political in nature. Therefore, they are not
amenable to jurisdiction of ordinary civil court. The State is immune from being sued, as the
jurisdiction of the courts in such matters is impliedly barred.
This distinction between sovereign and non-sovereign functions, in the context of liability
of the State in tort and contract originated as a result of the judgment by the Supreme Court at
Calcutta in the Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India case.
This distinction came to occupy a central place in this area.
In course of time the scope of the expression Sovereign Functions came to be
considerably narrowed down as various courts regarded many Governmental acts as Non
Sovereign. This considerably reduced the practical importance and now it depends on the
nature of power and manner of its exercise.
For example: Defence of the state, Maintenance of law and order and Public order,
Security of the state, Judicial functions, etc.
The distinction between sovereign and non-sovereign functions was considered at











In the modern sense, the distinction between sovereign or non-sovereign power thus does
not exist. It all depends on the nature of the power and manner of its exercise. Legislative
supremacy under the Constitution arises out of constitutional provisions. The legislature is free to
legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and
administer the law. A law made by a legislature may be bad or may be ultra vires, but, since it is
an exercise of legislative power, a person affected by it may challenge its validity but he cannot
approach a court of law for negligence in making the law. Nor can the Government, in exercise
of its executive action, be sued for its decision on political or policy matters. It is in public

interest that for acts performed by the State, either in its legislative or executive capacity, it
should not be answerable in contracts or torts. That would be illogical and impractical.
But where the fundamental right of a citizen guaranteed by Article 21 is violated, it is
evident that such actions would not be immune as earlier it was possible for the state to plead the
defense of sovereign functions.