A

PROJECT
ON

Sovereign immunity is subject to Fundamental Rights:

A study under Law of Torts
(Law of Torts)

Submitted as a partial fulfillment of the requirements

for
B.A. LL.B (HONS) 5 Year Integrated Course

Session: 2019-2020

Submitted On: 11th September, 2019

Submitted By: Submitted to:
AVANI LEKHARA Dr. Venu Rajpurohit
Roll No. -18
Semester -1 Section -A

University five year law college

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 University of Rajasthan, Jaipur
Declaration

I, AVANI LEKHARA, hereby declare that this project titled "Sovereign

immunity is subject to Fundamental Rights: A study under Law of Torts” is
based on the original research work carried out by me under the guidance and
supervision of Dr. Venu Rajpurohit.

The interpretations put forth are based on my reading and understanding of

the original texts. The books, articles and websites etc. which have been relied
upon by me have been duly acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or

diploma has been conferred on me before, either in this or in any other university.

Date: 11th September, 2019 (Avani Lekhara)

Roll No.18
Semester 1A

2
 Certificate

Dr.Venu Rajpurohit Date:11th September, 2019

Assistant Professor
University five year law college
University of Rajasthan ,Jaipur

This is to certify that Avani Lekhara student of semester 1.Section A of

University Five Year Law College, University of Rajasthan has carried out project

tittle "Sovereign immunity is subject to Fundamental Rights: A study under

Law of Torts” under my supervision. It is an investigation of a minor research

project. The student has completed research work in stipulated time and according

to norms prescribed for the purpose.

Supervisor

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 Acknowledgment

I have written this project titled, "Sovereign immunity is subject to

Fundamental Rights: A study under Law of Torts” under the supervision of,
Dr. Venu Rajpurohit Faculty, University Five Year Law College, University of
Rajasthan, Jaipur. His valuable suggestions herein have not only helped me
immensely in making this work but also in developing an analytical approach this
work.

I found no words to express my sense of gratitude for Director Dr. Sanjula

Thanvi, and Dy. Director Mr. Manoj Meena and Mr. Abhishek Tiwari constant
encouragement at every step.

I am extremely grateful to librarian and library staff of the college for the
support and cooperation extended by them from time to time.

A
vani Lekhara

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 Table of Contents

Contents Page No.

Declaration of originality 2

Certificate 3

Acknowledgment 4

Abstract 6

Objectives 7

Hypothesis 7

Research Question 7

Research Methodology 7

Chapter -1 - Sovereign Immunity 8

Chapter- 2 - Fundamental Rights in Indian Constitution 11

Chapter- 3 - Sovereign immunity is subject to Fundamental Rights 12

Conclusion 16

Bibliography 18

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 Abstract

The Constitutional framers had an idea to incorporate the Bill of Rights into our
Constitution as fundamental rights. These rights are regarded as superior to all other rights under
the Indian Constitution. Parts 111 and IV of the Constitution define the nature and scope of the
Indian State's human rights obligations and it clarifies the jurisprudence of the rights guaranteed
under the constitution. The fundamental rights act as a restriction on the actions of the state and
if it exceeds the power, legal liability arises. The liability of the State in India and its
jurisprudential basis for the award of compensation seems to be two fold under the Constitution.
Firstly, the State has a legal duty to protect the guaranteed rights, and it must compensate the
victim if it acts contrary to it. Secondly the Writ powers are available to the superior courts to
ensure that the State does protect these rights and these powers are not to be used in a hyper
technical fashion. In order to be effectively redressed for the breach of duty by the State, the
victim must be compensated by the State.
According to Dr Justice Anand, the constitution is the fundamental law of the land and if
the action of the States is found to be unconstitutional, the courts are empowered to eliminate
those acts .The courts are the guardian of those rights and have to uphold the Constitution. So
the accountability of the Judges are not only towards their conscience but also to the people upon
whom the sovereignty vests. From this it can be concluded that the courts are bound not only to
protect and guard the basic rights of the people but also to declare the acts as invalid and
compensate the victim for the violation of guaranteed rights. The scope of the Constitutional
torts depends on the scope of the remedy and on the scope of fundamental rights.

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Objectives

Through this project work, the researcher aims to study about the Sovereign immunity is
subject to Fundamental Rights under Law of Torts.

Hypothesis

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.

Research Question

How far the sovereign immunity from tort liability perpetuates injustice by barring
recovery for tortuous conduct merely because of the status of the wrongdoer?

Research Methodology

The researcher has adopted doctrinal method research. The researcher has made extensive
use of the available resources at the library of University Five Year Law College, University of
Rajasthan and also internet resources.

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 Chapter -1 - Sovereign Immunity
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.
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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
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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.

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 Chapter -2 - Fundamental Rights in Indian Constitution
India was established as a 'Union of States' with a highly centralized federal structure
with a strong center in relation with the states. The original preamble provided that India shall be
a' sovereign democratic republic'. It was later, in 1976, that the words 'socialist' and 'secular'
were added to the Preamble. The Constitution provides for adult suffrage to allow the citizens to
vote and elect their representatives and the government. This ensures the common participation
of all in a democratic fashion. Other features of the Constitution - like creation of democratic
political institutions and processes of the parliamentary system, creating an independent
judiciary, and stipulating for civil and political, and economic and social rights for people –
fulfill the democratic essence and social transformation agenda of the Preamble. Some of these
features are described later in this section.

In the Indian Constitution, the human rights provisions are set out in two chapters. Part
III of the Constitution provides for Fundamental Rights, largely of political and civil nature,
which are enforceable by a court of law. The rights in this chapter include (equality before the
law, the right not be discriminated against on grounds of religion, race, caste, sex or place of
birth, equal opportunity in matters of public employment, the abolition of untouchability,
freedom of speech and expression, the right to form associations and unions, freedom of
movement throughout, and to reside in, any part of the country, the right to practice any
profession or occupation, protection upon conviction for offences, right to life and personal
liberty, protection at the time of arrest and detention, the prohibition of traffic in human beings
and forced labor, the prohibition of employment of children in factories and other hazardous
employment, freedom of conscience, profession, practice and propagation of religion and
management of religious affairs, and the protection of cultural and educational rights of the
minorities.) This chapter was revolutionary as it broke the barriers of the Indian traditional and
hierarchical society that did not recognize the principles of individual equality.

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 Chapter -3 - Sovereign immunity is subject to Fundamental Rights
In cases of violations of Human Rights or Fundamental Rights, a liberal approach was
followed in interpreting the Sovereign Function theory, thereby, bringing every such violation of
Fundamental Rights within the arena of State’s Liability. In some cases, the dictum was
altogether discarded along with the immunity of the Crown concept. Latest developments signify
the trend of eradicating this maxim of gone days in order to breed accountability. Even the steps
are taken to shift from vicarious liability to direct liability of the State. Even if, the negligence of
the servants can’t be ascertained, still the State is made liable.

Negligence

Sovereign immunity has been the shield behind which government official errs and
escapes penalty or punishment. What this notion means is that the government being a sovereign
entity, always acts bonafidely and hence cannot be treated at par with individuals. In other words
the officials, who act on behalf of the government or State in its all inclusive sense, are covered
by immunity clause. Now the Supreme Court has stripped the State of this age old privilege, on
the well taken argument that in a democracy sovereignty lies with the common man and any
attack on him or his dignity violates the basic cannons of society and, therefore, invites action
under ordinary law. The Supreme Court decision in N. Nagendra Rao & Co. v. State of Andhra
Pradesh through a two judge bench has endorsed this stand and laid down principle that the State
is “not above law” and has no power to deprive the common man of his property. The state or the
official concerned if found negligent are guilty of “abuse of power”. The Bench felt that the
distinction between the government (the public sector) and private undertaking is withering away
and so what applies to the latter should also apply to former.

The S.C. has ruled in Nagendra Rao’s case that the vicarious liability of the State is
linked with the negligence of its officers, if the officer can be sued personally; there is no reason
or rationale of the proposition that the State cannot be sued. The determination of vicarious
liability of the State being linked with negligence of its officers, if they can be sued personally
for which there is no dearth of authority and the law of misfeasance in discharge of public duty
having marched ahead. There is no rationale for the proposition that if the officer is liable, the

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State cannot be sued. The doctrine has become outdated and sovereignty now vests in the people.
Therefore there is no rationality in conferring immunity on the State.

The Welfare State

In 1962, the S.C. for the first time since the Constitution came into force was called upon
to consider the question of state liability for the tortious acts of its servants in the State of
Rajasthan v. Vidyawati.

Referring to the P&O case, the court derived the proportion that the govt. would be liable
for damages occasioned by negligence of its servants if the negligence was such as would render
an ordinary employer liable. At another place, the court observed that to uphold the vicarious
liability of the State would be only to recognize the old established rule of more than 100 years.

Along with this, the court also made certain general observations underlying the need to
hold the State liable vicariously. "Viewing the case from the point of view of first principle",
observed the court, "there should be no difficulty in holding that the state should be as much
liable for tort in respect of a tortious act committed by its servants within the scope of his
employment and functioning as such, as any other employer." At another place, the court stated,
"Now that we have, by our constitution established a Republic form of government, and one of
the 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 vicariously for the tortious acts of its servants."

Acts of State

In State of Rajasthan v. Smt. Vidyawati, the Supreme Court held that the injuries
resulting in death of Jagdish Lal were not caused while the jeep was being used in connection
with the sovereign power of the State, so the State is liable to Mrs. Vidyawati. The important
points which emerge out of the judgment are:

1. Doctrine of state immunity was never applicable to India in the form as it applied in
England. The East India Company could not have claimed any such immunity as was
available to sovereign.

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 2. There is similarity of the nature, functions and obligations of the present day government
to that of the East India Company.
3. The principle of sovereign immunity is now a discarded doctrine. When the rule of
immunity in favour of the Crown, based on common law in the United Kingdom has
disappeared from the land of its birth, there is no legal warrant for holding that it has any
validity in this country particularly after the coming in to operation of the Constitution.

Compensatory Jurisprudence

Ira Rudul Shah v. State of Bihar, a three judge bench of the Supreme Court under writ
jurisdiction, passed an order of compensation for the violation of Article 21 and Article 22 of the
Indian Constitution. In this case, the petitioner was unlawfully detained in prison for 14 years
even after his acquittal. On finding that his detention was wholly unjustified, he demanded
compensation for the illegal detention. Although an ordinary remedy through a civil suit was
available to the petitioner for claiming compensation, the Supreme Court held that it wouldn't be
doing justice merely by passing an order of release from illegal detention and in fact had the
power to direct the State Government to pay compensation. It ordered a sum of Rs 30,000 to be
paid by the State within two weeks of the order. In Sebastian Hongray v. Union of India, the
Supreme Court awarded compensation for torture, agony and harassment of two ladies whose
husbands had been missing after they were taken to an army camp by army officials in Manipur,
and for the failure of the detaining authority to produce the missing persons. Exemplary costs
were awarded for the same and the single judge bench did so following Rudul Shah but without
indicating any further reasons.

The following points are clear from a perusal of the aforementioned precedents. Firstly, it
is clear that a violation of fundamental rights due to police misconduct, can give rise to a liability
under public law, apart from criminal and tort law. Secondly, that compensatory jurisprudence
can be an effective tool for violation of fundamental rights. Thirdly, it is the State that is held
liable and therefore the compensation is borne by the State and not by the individual police
officers found guilty of misconduct. Fourthly, the Supreme Court has held that the standard of
proof required for proving police misconduct such as brutality, torture and custodial violence and
for holding the State accountable for the same, is high. It is only for patent and incontrovertible

14
violation of fundamental rights that such remedy can be made available; and not for the doubtful
cases. Fifthly, the doctrine of sovereign immunity does not apply to cases of fundamental rights
violation and hence cannot be used as a defense in public law, and lastly, the State can recover
the amount from the erring officer if it desires so.

Personal Liability

In the case of Mohd. Zahid v. Govt. of NCT of Delhi, the TADA Court held the appellant
guilty and hence an appeal was filed in the Apex Court pleading that he was not guilty of the
charges leveled against him. In his specific defense he pleaded that the police apprehended him,
and after detaining him for three days in the police post, foisted a false case against him. He
asserted that no country made firearms or cartridges were recovered from him. The Apex Court,
setting aside the conviction held that appellant has been a victim of prolonged illegal
incarceration due to machination of police personnel. Therefore, it directed the Delhi
Government to pay compensation to the sum of Rs. 50,000/- to appellant which could be
recovered from the erring police officers.

The Present State of the Sovereign immunity was explained the Hazur Singh Case in
following words:

India is constitutional democratic state governed by Rules of law and the state cannot,
claim any exemption from payment of compensation for illegal and wrongful deed of its officials
on the so called principle of sovereign immunity. Time has come to give good bye to the doctrine
of sovereign immunity. And to sweep of this archaic rule, which has become outdated in the
notion of modern development. In Indian democratic republic, the sovereignty lies on the people
and the government, which is run by the people, elected by the people, cannot seek immunity
against themselves.

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 Conclusion
The trend to set free the Indian legal system from the paralyzing effects of the Sovereign
Function theory can be seen from the preceded analysis but yet due to over-ruling trends and
recourse to the penumbral areas, this concept is resurrecting time and again. The total shift
demands a clear panoramic vista firstly as to the purpose and emergence of Sovereign or State.

The Concept of Sovereign Functions is a gift of the British Justice System, but the
concept emerged just because Peacock, C.J, wanted to distinguish and justify the imposition of
liability on the company. Even if, one agrees to that, the adherence to it is unwarranted.
Moreover, even in the country, where this immunity concept was conceived and delivered has
long back given a death blow to it. But due to the refer-back approaches owing to Article 300, it
is ruling Indians from the grave.

Moreover, Article 300 was incorporated to persist with the scenario at that time and was
subjected to any law made by Parliament or State Legislature, but which was not made barring
some areas of tortious liability. A futile attempt was, no doubt, made; but was centralised to
safeguard the use of power by Army and Police. Any legislation in this regard is a felt necessity
but immunity to any department will largely nullify the remedy it will provide. The purpose of
legislation should be to balance the conflicting interests and firstly, the area of conflict should be
properly analysed.

The people want a government of rule of Law and not of men. And whenever power is
given to men, it is supposed to corrupt the best of the minds. So power should be properly
checked in order to check the corruption of mind. The balance is needed between despotism and
anarchy.

The power should not be misused in any way and whenever these is misuse of power, the
State can be held liable because it is duty of the State to safeguard and check from misuse of
power. Whenever people surrender, they surrender to reasonable and just use of power and not to
misuse or abuse of power; so power should be used hesitatingly and not at will.

Thus, in order to meet growing needs of the rapidly changing society the doctrine of
tortious liability of the state requires to be made adaptable to the present socio-economic

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conditions of the society. On account of these reasons, the First Law Commission after making
exhaustive surveys of case law, made the following suggestions in 1957.

1. The old distinctions should no longer be invoked to determine the liability of the state. The
law laid down by Sir Charles Turner in Hari Bhanji case is correct.

(a) Recognition of liability of the state for the torts committed by its employees during
the course of their employment, for the torts arising under the common law duty of
ownership and possession; for breach of duty by its employees, for the wrongful
exercise of power by its employees causing damage, but not for the acts authorized by
statute, which in themselves, are injurious.

(b) In its rights and duties, the state should be equivalent to a private employer; the state
should be entitled to indemnity from the errant employee.

(c) Recognition of immunity of the state from any liability should be limited for the acts
of state, acts done under judicial power, acts done in pursuance of external affairs and
defense.

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 Bibliography

1. P. Ishwara Bhat, Administrative Liability of the Government and Public

Servants, 18-20, (1983); see also H.S. Street, Government Liability: A
comparative Study.

2. Tortious Liability of Police Officials: Emerging Trends, Sanjay Gupta &

Kamya Singh-RLR page No. 205-224

3. Law Commission of India, First Report(Liability of the State in Tort) 1950

4. Indian Constitution

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